Opinion
02 Crim. 520 (HB)
May 2, 2003
OPINION AND ORDER
Defendant Romanus Isiofia moves to suppress certain statements, including his social security number, and evidence obtained during a search of his apartment. The defendant was indicted on September 18, 2002, for using a social security number assigned to him on the basis of false information provided by him in order to obtain payments or other benefits to which he was not entitled, possessing a counterfeit resident alien card, knowingly producing without legal authority a counterfeit resident alien card and social security card, and possessing five or more identification documents and false identification documents. The Court received briefs from both sides and held a hearing on April 14, 2003. For the following reasons, defendant's motion is granted in part and denied in part.
This four-count indictment superceded a one-count indictment that the grand jury returned on April 26, 2002, that charged the defendant with using a social security number assigned to him on the basis of false information to obtain payments or other benefits to which he was not entitled.
18 U.S.C. § 1546(a); id. § 2.
Id. § 1028(a)(1), (b)(1)(A)(i), (c)(1); id. § 2. The statute defines "produce" to include "alter, authenticate, or assemble." Id. § 1028(d)(6).
Id. § 1028(a)(1), (b)(1)(A)(i), (c)(1); id. § 2.
I. Facts
On the morning of March 27, 2001, approximately eight or nine law enforcement officers including members of the U.S. Secret Service, the U.S. Postal Inspectors, and the New York City Police Department conducted a "controlled delivery" to defendant's residence in the Bronx where he lived with his wife and five-year-old twin sons He was the only one home at the time. Postal Inspector Andre Esannason, dressed as a letter carrier, after being buzzed into the building by the defendant, delivered a package to a "Robert Heskey." Transcript of 4/14/03 Suppression Hearing [hereinafter Tr.] 6-7. Two other members of the team, Special Agent ("SA") Karen Fontana Graves of the Secret Service and Detective Tony Cruz of the NYPD entered the building and took up positions on the stairwell nearby but out of sight of the defendant's apartment. Tr. 6. The defendant opened the apartment door and the Inspector asked whether he was Robert Heskey. The defendant nodded. Tr. 6-7, 18. After the defendant signed the two package slips, see Gov't Exs. 1 2, the Postal Inspector said, "Thank you very much. Have a nice day," which was the signal for SA Graves and Det. Cruz to affect the arrest of the defendant. See Tr. 7, 9, 17. Entry into the apartment occurred between 10:15 and 11:00 a.m. Tr. 17 (testimony of Inspector Esannason that the package was delivered at approximately 10:15 to 10:30 a.m.); Tr. 69 (testimony of SA Graves that the delivery was at approximately 11 a.m.); Tr. 48, 51 (testimony of SA Casey McGee that the package delivery was "definitely less than an hour" before 11:30, the time defendant signed a Miranda waiver). The agents did not have a search warrant or an arrest warrant, nor an anticipatory arrest warrant. Tr. 12, 14.
It is unclear whether the defendant was inside his apartment or in the hallway of the building when he signed for the package and the agents entered to effect the arrest. Inspector Esannason did not directly state whether the defendant was inside or outside the apartment. Instead, he testified that once he arrived at the door to the apartment, he and the defendant stood about two feet apart. Tr. 6-7. Similarly, SA Graves did not explicitly state where the defendant was when she and Det. Cruz approached him. However, she testified that "as we were placing him under arrest, he backed into his apartment and we backed in with him." Tr. 80.
"An anticipatory warrant is a warrant that is perfected upon the occurrence of a specified future event." United States v. Becerra, 97 F.3d 669, 670 (2d Cir. 1996).
SA Graves testified that when she and Det. Cruz approached the defendant, he backed into a small foyer, and they placed him against a wall and handcuffed him. Tr. 69-70. Once the defendant was handcuffed, SA Graves and Det. Cruz placed him at a small table inside the apartment and waited, along with Inspector Esannason, for the other agents to arrive. Tr. 71-72. Someone — presumably Det. Cruz, since neither of the other two officers in the apartment testified that they made such a call — radioed to the other officers, who were waiting outside in a car. Tr. 28. At some point after the defendant was arrested and placed in handcuffs, Inspector Esannason noticed that the signature on the card was that of "T Smith" rather than "Robert Heskey." Tr. 21-22, 26. Inspector Esannason testified that he informed the case agent in charge of the investigation, Special Agent Guida, about this when SA Guida arrived in the apartment. Tr. 21-22, 26. Inspector Esannason left the apartment after five minutes or so to resume his role as a postal inspector. Tr. 24.
When the other agents arrived, SA McGee and SA Guida conducted a "protective sweep" of the apartment. Tr. 29. (However, Inspector Esannason testified that there was no reason to believe that there were weapons or other people in the apartment. Tr. 20.) After the protective sweep, SA McGee came over to the table where the defendant had been situated. Tr. 30. SA McGee asked the defendant's name, and when he could not understand the response due to the defendant's accent, asked if the defendant had any identification. Tr. 30. Defendant pointed to a closed briefcase on the other side of the room. Tr. 30-31. The defendant indicated that this was where the identification was and permitted SA McGee to open it. Tr. 31. Special Agent McGee found a number of identification cards inside, including an alien registration card with the defendant's name and several social security cards with various other names. Tr. 31-33.
According to SA McGee, it was at this point that the agents started to fill out the paperwork contained in the arrest packet, starting with pedigree information required to complete the U.S. Marshals Service's standard Prisoner Intake form, Gov't Ex. 104. Tr. 31, 34; Tr. 72 (testimony of SA Graves). SA Graves testified that it was her decision to take down the defendant's pedigree information in the defendant's living room because "I just felt that I had the paperwork in my hands and I'm sitting across from him and I could take this opportunity to get his basic information. . . ." Tr. 86. SA McGee testified that this decision to proceed in the defendant's living room was made by him and SA Graves because: "There wasn't really a reason to go. It wasn't unsafe in the apartment." Tr. 54-55. SA Graves further testified that such sessions were equally common as off-site pedigree sessions, e.g., at a precinct or in the U.S. Attorneys office. Tr. 86; Tr. 51 (testimony of McGee that pedigree sessions are performed onsite about half the time). Filling out the Prisoner Intake form lasted approximately one-half hour, and the agents procured an unusually complete amount of information from the defendant, including the ages and dates of births of his children, the telephone numbers of most of his relatives, and bank account information. Tr. 77 (testimony of SA Graves); Tr. 36-37 (testimony of SA McGee); Gov't Ex. 104.
After the agents completed the Prisoner Intake form, SA McGee then read and showed the defendant the form which contained the Miranda rights and a waiver of those rights. The defendant signed this form at 11:30 a.m., indicating that he understood and waived these rights. Tr. 41; Gov't Ex. 107. A few moments later, the defendant signed a form that granted his consent for SA Guida and SA McGee to conduct a complete search of the apartment and the defendant's car. Tr. 42; Gov't Ex. 105. On this form, the line that indicates the nature of the contraband or evidence sought is blank. Gov't Ex. 105. Some time later and in an apparent abundance of caution, SA McGee also obtained a second consent to search "the computer located at my home." Tr. 42, 56; Gov't Ex. 106. On this second consent form, no names are filled in but the blank for the nature of the contraband or evidence is filled in with "crime/package delivery." Tr. 58; Gov't Ex. 106. (This consent form also contains several notations in the margins, but SA McGee did not know who wrote them or their significance. Tr. 57-58.)
The three law enforcement agents who testified at the hearing stated that the defendant was generally pleasant and cooperative. Tr. 32-33, 37 (testimony of SA McGee). In particular, SA McGee testified that he spent a considerable part of the day with the defendant and that he was friendly and easy to get along with throughout. Tr. 47. At some point, one of the defendant's hands was freed from the handcuffs, and only one wrist was handcuffed to the table or chair leg. Tr. 33. The agents testified that they detected no alcohol on his breath, and that they were in close proximity to him, nor did they observe any other common signs of inebriation, such as slurred speech, red eyes, wobbliness, incoherence. Tr. 7-9, 20-21 (testimony of Esannason); Tr. 32, 41 (testimony of SA McGee); Tr. 74, 77-78 (testimony of SA Graves). However, both Secret Service agents testified that they saw a bottle of beer in the apartment. According to SA McGee, the bottle was half-empty and "normal size," although he appeared later to concede that the bottle may have been a forty-ounce one. Tr. 45, 61. Special Agent Graves testified that the bottle was clear glass and three-quarters full. Tr. 78, 82. The agents neither saw nor looked for any other bottles. Tr. 83.
At the hearing, the single witness for the defense was the defendant's wife, Marcy Orji. She testified to the defendant's alcoholism in general and to what he had to drink that morning before she left at about 8:00 or 8:30 a.m. Tr. 89-90, 94, 96. She stated that he arrived home from driving a taxi cab at approximately 4 a.m. She knew this because she had the keys to the house and he had to buzz her to get in. Tr. 95. She further testified that he was carrying two forty-ounce bottles of malt liquor in a bag, one of which he then proceeded to open and drink, while watching television from a seat on the couch. Tr. 96. She testified that he regularly — i.e., apparently every day — drank six to eight such bottles and that he always drank Private Stock, which is a brand of malt liquor that comes in a green bottle. Tr. 90. Ms. Orji testified that malt liquor has a greater percentage of alcohol by volume than beer. Tr. 93. She then went back to sleep and woke up again at 7:00 a.m. Tr. 106. The twins left for school around 7:30 and she left the apartment at around 8 or 8:30. Tr. 95, 106, 112. She testified that they had an argument about his drinking, while at the same time she explained that a package from Victoria's Secret would arrive that day or over the next few days and that he should sign for it if it arrived. Tr. 97. The testimony showed they constantly argued about his drinking and that she threw him out of the apartment as a consequence. Tr. 97-98, 100-01. They apparently reconciled — at least partially, although he sleeps in another room — for the benefit of their twin sons. Tr. 117.
The defendant's affidavit in support of his motion attested to his being a recovering alcoholic and that he drank approximately 100 ounces of malt liquor over approximately two hours that morning. Isiofia Aff. ¶¶ 3-4. He stated that he started to drink that morning after he returned home from driving a gypsy cab and after driving his children to school. Id. ¶¶ 2, 4. He stated that someone rang the buzzer to his apartment and identified himself as a deliveryperson with a package. Id. ¶ 5. He stated that he was asked if this was apartment 2H and told to sign, and he did, at which point "the deliveryman pushed open my door, and five or six other people rushed into my apartment and began yelling at me." Id. ¶¶ 6-7. He was handcuffed to the dining room table while the people searched the apartment. Id. ¶ 8. He stated that he was threatened with jail and deportation if he did not grant them consent to search the entire apartment. Id. ¶ 9. Prior to being informed of his Miranda rights, he was asked which of several social security cards found in the apartment was his, and he told them. Id. ¶ 11.
II. DISCUSSION
At the outset of this discussion of the relevant legal issues, it will be helpful to highlight certain key facts: The agents performed the controlled delivery at some time between 10:15 and 11:00 a.m. The government had neither an arrest or search warrant. Once Inspector Esannason gave the pre-arranged signal, two agents immediately entered the defendant's apartment and restrained him. The agents did not request and the defendant did not give consent to enter the apartment. A few moments later, five or six more agents entered the defendant's apartment, two of whom immediately conducted a protective sweep. Shortly thereafter in response to the question whether the defendant had identification, he indicated it was in the briefcase and gave consent to the agents to retrieve and to open a briefcase. At 11:30 a.m. — i.e., between thirty minutes and an hour and fifteen minutes after the agents entered defendant's apartment — the agents first informed the defendant of his Miranda rights and obtained a waiver of those rights. A few moments later, the agents obtained a consent to search the defendant's home and car. Some indeterminate time later, the agents obtained a consent to search the defendant's computer.
A. Suppression of evidence obtained based on defendant's consent to search
In their briefs and arguments at the hearing, the parties framed the issue as whether the defendant's consent was voluntary. Although I analyze the voluntariness of the defendant's consent, I conclude that there is another way to formulate the issue presented by these facts, namely whether the consent was sufficiently attenuated from an illegal entry and search. Under either analysis, the evidence obtained pursuant to the defendant's purported consent to search his briefcase and his apartment, car, and computer must be suppressed.
In Brown v. Illinois, 422 U.S. 590 (1975), a case that addressed whether the issuance of Miranda warnings sufficiently attenuates the taint of prior government illegality, the Court, after discussing certain factors for determining attenuation, stated "The voluntariness of the statement is a threshold requirement." Brown, 422 U.S. at 604. As Professor LaFave stated in his treatise on the law of search and seizure:
When called upon to determine the admissibility of physical evidence obtained by a purported consent which was given following some form of illegal police action, the courts do not consistently follow the same approach in characterizing the issue. Sometimes the question is stated in terms of the previously discussed "totality of the circumstances" voluntariness test. . . . On other occasions, however, the question is said to be whether the consent was a fruit of the prior illegality. In the latter instances, the courts are making use of the so-called "fruit of the poisonous tree" doctrine, whereby, Wong Sun v. United States instructs, it must be determined "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." While there is a sufficient overlap of the voluntariness and fruits tests that often a proper result may be reached by using either one independently, it is extremely important to understand that . . . the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.
3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(d), at 655-66 (3d ed. 1996) (emphasis added).
1. Fruit of the poisonous tree
The agents' conduct violated the Fourth Amendment in at least two respects. Most troubling is that a team of eight or nine agents entered the defendant's apartment without either the defendant's consent or an arrest or search warrant and some or all of them encamped in his living room, while the defendant, handcuffed to a table, answered their questions. The government offered neither an explanation nor evidence, assuming there was any, for why it was necessary to enter and remain inside the defendant's apartment. It is well-settled that a person is presumed to enjoy the greatest expectation of privacy in his home and thus the greatest Fourth Amendment protections. See Kyllo v. United States, 533 U.S. 27, 31 (2001) ("`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." (citation omitted)). It is also well-settled that a warrantless entry into a person's home is presumptively unreasonable, and violative of the Fourth Amendment unless there is an exigent circumstance. See United States v. Zabare, 871 F.2d 282, 289 (2d Cir. 1989) ("These same basic principles of Fourth Amendment law [that warrantless searches and seizures inside a home are unreasonable and the government bears the heavy burden of justifying an entry] apply with equal force in the context of warrantless entries in the home made for purposes of arrest, even where there is independent probable cause for such an arrest."); United States v. Karagozian, 715 F. Supp. 1160, 1164 (D. Conn. 1989) ("[A]bsent `exigent circumstances,' an arrest may not be made without a warrant inside the arrestee's home regardless of whether probable cause exists."). As the Supreme Court stated in a landmark decision:
Given that the Court found a lack of consent to enter, the most recent case from the circuit which upheld the denial of a motion to suppress is inapposite. See United States v. Davis, F.3d __,2003 U.S. App. Lexis 7498, 2003 WL 1908025 (2d Cir. Apr. 22, 2003) (upholding the admission of evidence of a drug transaction obtained from a hidden video camera in the jacket of a confidential informant who was an invited guest in the defendant's home). Here, the major concern has to do with what follows from an illegal entry. In contrast to the situation here, the defendant in Davis invited the confidential informant into his home.
The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home — a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." That language unequivocally establishes the proposition that "[at] the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.Payton v. New York, 445 U.S. 573, 590 (1980) (emphasis added). The exigent circumstances where it is reasonable for the government to enter a home without a warrant include the imminent destruction of evidence or the imminent endangerment of another person. See Zabare, 871 F.2d at 289. Finally, evidence obtained pursuant to an illegal search where, for example, there is no exigent circumstances are subject to exclusion:
The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of testimony concerning knowledge acquired during an unlawful search. Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes "so attenuated as to dissipate the taint."See Murray v. United States, 487 U.S. 533, 537-38 (1988) (citations omitted).
Turning to the exigent circumstances exception, "[t]he essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an "urgent need' to render aid or take action." United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). The Second Circuit has advised district courts to consider several factors in this analysis:
(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.MacDonald, 916 F.2d at 769-70 (internal quotations and alterations omitted). "This list is `illustrative, not exclusive.'" United States. v. Cattouse, 846 F.2d 144, 146 (2d Cir. 1988); MacDonald, 916 F.2d at 770. Here, the defendant's crime was non-violent and along the spectrum of criminality not especially grave. There is not a scintilla of evidence that the agents feared that the defendant was armed or otherwise posed a danger to anyone. To the contrary, the agents controlled the timing of the delivery and did not believe anyone else was in the apartment. Indeed, when they apprehended the defendant and conducted the protective sweep of the apartment, they did so with their weapons holstered. There is no indication the defendant would have attempted to escape had the government not immediately seized him because until the agents apprehended him he had no reason to think this was anything but a routine mail delivery. Nor was there any indication that evidence was imminently to be destroyed. The absence of any meaningful description of the contraband or evidence to be seized on the two consent-to-search forms suggests that the agents were not even clear as to what evidence they sought.
Once inside, two agents proceeded to conduct a protective sweep of the apartment. Although not as blatant, this protective sweep also appears to violate the defendant's Fourth Amendment rights. "A `protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990). The Court in Buie reasoned that a limited and brief intrusion might be justified to protect the police officers or others. See United States v. Hernandez, 941 F.2d 133, 135-36 (2d Cir. 1991). The standard for a protective sweep is:
[A]s an incident to the 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 be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.Buie, 494 U.S. at 334 (emphasis added); see also United States v. Blue, 78 F.3d 56, 59 (2d Cir. 1996) ("[T]he officer must reasonably believe, based on specific and articulable facts, that the area to be swept harbors a person posing a danger to those present before making the warrantless search."). However, the police cannot manufacture the exigent circumstances that form the basis for the protective sweep. See United States v. Segura, 663 F.2d 411, 415 (2d Cir. 1981); cf. Zabare, 871 F.2d at 290 (rejecting defendant's contention that the government manufactured the exigency in bad faith). Where, as here, the government controlled the timing of the controlled delivery, "exigent circumstances arising out of law enforcement actions consistent with that timing are deemed manufactured." United States v. Howard, 106 F.3d 70, 78 (5th Cir. 1997). Furthermore, the government then decided to conduct the booking session in the defendant's living room, but has offered no explanation why this was necessary. The agents testified that onsite and off-site bookings are conducted with approximately equal frequency and that the decision to take down this information in the defendant's living room was because SA Graves was given the paperwork and because it "wasn't unsafe" in the apartment — hardly a valid justification or support for the protective sweep. Finally, the government fails to articulate any specific and articulable facts" of why the area needed to be swept, i.e., that there was a danger posed either to them or to someone else.
The fruit-of-the-poisonous-tree doctrine, which applies to evidence obtained by exploitation of a "primary illegality" by the agents unless the seizure was sufficiently attenuated from the illegality. See Wong Sun v. United States, 371 U.S. 471 (1963); Brown v. Illinois, 422 U.S. 590 (1975); see also Karagozian, 715 F. Supp. at 1166 ("Any consent was sufficient to authorize the search . . . only if events after the unconstitutional arrest sufficiently attenuated its taint."). The government must show that the consent was "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Brown, 422 U.S. at 599 (quoting Wong Sun, 371 U.S. at 486); see also United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990) (quoting Brown and Wong Sun); United States v. Ceballos, 812 F.2d 42, 49-50 (2d Cir. 1987). The Brown decision indicates four factors relevant to the determination of whether the taint of the illegal conduct has sufficiently diminished — namely, "whether a Miranda warning was given, the `temporal proximity' of the illegal entry arrest and the alleged consent, `the presence of intervening circumstances,' and `the purpose and flagrancy of the official misconduct are all relevant.'" Oguns, 921 F.2d at 447 (quoting Brown). Here, there is no attenuation between the illegality and the consents to and seizure of the evidence. The first consent — i.e., to open and search the briefcase — was obtained only several minutes after the agents entered the apartment, restrained the defendant, and conducted the protective sweep. Although the Miranda warnings preceded the two consent-to-search forms that the defendant signed, the primary illegality was ongoing at the time the defendant signed these forms — eight agents were encamped in the defendant's living room for approximately thirty minutes to one hour and fifteen minutes before he executed the first of these forms. Under these facts, "[t]he proper disposition follows as an application of well settled law. . . . `[T]he [defendant's] consent was tainted by the illegality and was ineffective to justify the search.'" Ohio v. Robinette, 519 U.S. 33, 51 (1996) (Stevens, J., dissenting) (citations omitted; quoting Florida v. Royer, 460 U.S. 491, 507-08 (1983) (plurality opinion)); see also Ceballos, 812 F.2d at 50 ("As in Royer, the consents to search and the statements given were too closely connected in context and time to the illegal arrest to break the chain of illegality.").
The record is silent on what the other six agents did while SAs McGee and Graves filled out the intake forms.
Although precedent clearly indicates the proper result on these facts, one case from this circuit requires additional discussion. In Oguns, the Second Circuit upheld a determination that the consent given by the defendant was voluntary even though it followed an illegal entry. See Oguns, 921 F.2d at 448. In Oguns, the agents arrested the defendant outside his apartment and immediately then conducted a security sweep of the apartment. After the sweep, the agents reentered the apartment with the defendant, where he gave consent to its search. See id. at 445. The district court concluded that there were exigent circumstances for the protective sweep, but did not address the propriety of the subsequent re-entry. See id. The Second Circuit found that the re-entry violated the Fourth Amendment, but nevertheless held that the defendant's consent was valid. See id. at 448. In reaching this conclusion, the court emphasized that the agent "deliberately read [defendant] his Miranda rights, stopping after each right to ensure that [the defendant] understood." Id. at 447. Second, the consent form the defendant signed clearly indicated his right to refuse consent. See id. at 447-48. Third, the agents did not seize any evidence until after the consent to search was obtained. See id. at 448. Finally, the agents' conduct was not "flagrantly illegal or fraught with evil purpose." Id at 448. Thus, Oguns is distinguishable on several critical grounds: First, unlike in Oguns, Mr. Isiofia was subject to two illegal acts by the government, the initial entry and the protective sweep. Second, unlike in Oguns, Mr. Isiofia was not informed of his Miranda rights until a substantial amount of time had elapsed and, significantly, after evidence had been obtained from the defendant's briefcase. Third, the agents did not inform Mr. Isiofia of his right to refuse consent. Finally, unlike in Oguns where the agents were investigating criminal acts that were then unfolding, here the government had complete control over the timing and circumstances of the delivery that led to the arrest and search of Mr. Isiofia.
According to defendant's counsel, most of the incriminating evidence it seeks to suppress was obtained from the briefcase. Tr. 123.
2. Voluntariness of the consent
The government bears the burden of proving, by a preponderance of the evidence, that the defendant's consent to search the briefcase and the apartment, computer, and car was given voluntarily. See United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996). Whether consent was given voluntarily is determined from a totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). It is not necessary that the consent be knowing and intelligent, although lack of knowledge of the right to refuse may be a factor. See United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995); Schneckloth, 412 U.S. at 227 ("While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent."). Further, the focus is on whether "the officer had a reasonable basis for believing that there had been consent to the search." Garcia, 56 F.3d at 423 (quoting United States v. Sanchez, 32 F.3d 1330, 1334-35 (8th Cir. 1994)); Florida v. Jimeno, 500 U.S. 248, 251 (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 fact that a person is under the influence of drugs or alcohol does not necessarily render consent involuntary, although intoxication may be considered in the evaluation of voluntariness. See United States v. Howard, 106 F.3d 70, 73, 80 (5th Cir. 1997) (consent was voluntary because defendant was "lucid, alert, and seemed capable of understanding" although apparently under the influence of some substance); United States v. Gay, 774 F.2d 368, 377 (10th Cir. 1985) (consent was voluntary because defendant was capable of rational thought even though he staggered and slurred his speech due to intoxication); United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (enumerating intoxication as a factor in determining voluntariness); but see United States v. Jones, 154 F. Supp.2d 617, 621 (S.D.N.Y. 2001) (intoxication not a factor in determining voluntariness). The government contends that it has met this burden — i.e., all three agents were seemingly credible and testified that they did not threaten or coerce the defendant, the defendant did not appear intoxicated in any way, and he was perfectly cooperative throughout the day.
At the hearing, the defendant and government introduced conflicting testimony and evidence about whether the defendant was intoxicated — or perhaps more properly whether he appeared intoxicated — at the time of his arrest. Based on the testimony and evidence at the hearing, I conclude that the defendant had been drinking that morning and although not perfectly lucid, was also capable of comprehending. Ms. Orji testified that her husband is an alcoholic, that he regularly drank six to eight forty-ounce bottles per day, and that he had drunk at least two such bottles by the time she left at 8:30 that morning for a job interview. Despite certain curiosities in her testimony and the discrepancy between her testimony and the defendant's testimony, I am prepared to credit her as testifying to the best of her recollection. The government's evidence was that its agents did not smell alcohol on the defendant's breath nor detect any other tell-tale signs of inebriation. The agents' consistent testimony about the defendant's coherence and cooperativeness was unrebutted and uncontroverted. However, the government witnesses conceded that there was a partially consumed beer bottle in the living room and that they did not rule out the possibility that there were other empty bottles. As for other signs of inebriation, it is entirely plausible that he would have been able to function without slurring his words or teetering despite having consumed an amount that certainly would have incapacitated someone unaccustomed to consistently drinking such large quantities of beer. Thus, his state of intoxication is a minor factor on the voluntariness scale.
In his affidavit, the defendant attested that he drove the twins to school that morning and that he did not start drinking until after he returned. Ms. Orji stated that he started drinking, as was his wont, when he returned home at 4 a.m. and that he did not take the children to school that morning and that in any event he would not have driven because the school was two blocks away.
The government also contends that the completeness of the information on the pedigree forms is unusual and corroborative of the coherence and cooperation that the agents testified about. However, this unusual level of detail lends itself to a second possible inference, namely that the agents were deriving some of this information from documents that were contained in the defendant's briefcase or elsewhere. For example, the pedigree sheet includes his bank account number and the address of the bank — types of information that people generally do not commit to memory, especially if Ms. Orji's testimony that Mr. Isiofia's alcoholism greatly impaired his memory is credited.
The second factor relevant to voluntariness is the time that elapsed between the defendant's arrest and his consent. According to the government witnesses, the defendant's consent to open and search his briefcase was given several minutes after the initial entry. Although the defendant had not been detained long, it was also close in time to what must have been a very startling, to say nothing of harrowing, series of events. The defendant's consent to search his apartment and car was obtained as little as thirty minutes and as long as an hour and fifteen minutes after the entry. Assuming a time somewhere in between — say forty-five minutes — this factor also tends toward a finding of coerciveness. This is especially true since all the while there were eight agents in his living room with him and he was handcuffed to the table. Also, the defendant is an immigrant and not a native English-speaker, a fact readily apparent to the agents who had some difficulty understanding the defendant given his accent. Cf. United States v. Ceballos, 812 F.2d 42, 48 n. 4 (2d Cir. 1987) ("[W]e believe that the [reasonable person] test does recognize obvious incapacities that critically bear upon voluntariness such as lack of fluency in English. . . ."); but see Oguns, 921 F.2d at 448 (in determining that consent given following an illegal search was sufficiently an act of free will, the court noted that although the defendant was a foreigner, he had been in the country for four or five months and spoke and understood English).
A third relevant factor for coerciveness is that there is no indication that he was ever appraised of what crime he was being charged with or what evidence the government hoped to seize; nor was he informed that he had the right to refuse consent. See Garcia, 56 F.3d at 322-23 ("[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." (citations omitted)). Here, the government presented the defendant with two consent-to-search forms, one that provided a helplessly vague description of the nature of the evidence and contraband to be seized and one that simply left this detail blank. Finally, on the intake form, the line for the charge" — whose importance is indicated by an asterisk and the word "mandatory" underlined — is nevertheless blank. See Gov't Ex. 104. As part of the objective reasonableness of the circumstances surrounding the defendant's consent to search his apartment, the fact that the agents provided little or no information about why they were in his apartment weighs against a finding that his consent was voluntary.
The government introduced into evidence as Government's Exhibit 103 a second intake form. This form also leaves blank the offenses which the defendant was being charged. Id Although SA McGee testified that he explained to the defendant, in effect, that it was a crime to order goods under fraudulent means, he also testified that he did not inform the defendant of his right to refuse to consent to either the search of the briefcase or the house, car, and computer, Tr. 59, the documentary evidence strongly suggests that the agents did not know — and therefore could not meaningfully explain — what crimes the defendant was suspected of committing.
Finally and perhaps most importantly, although the government agents were either unaware or untroubled by the methods used here, they should have known that their entry into and search of the defendant's apartment was illegal. An unconstitutional entry and search weighs heavily in the calculus of the objective reasonableness of the defendant's consent.
Under all the circumstances, it was objectively unreasonable for the agents to believe that the defendant's consent to open and search his briefcase and his consent to search the apartment, computer and car were voluntary. The evidence seized from the briefcase and pursuant to the consent-to-search forms is suppressed.
B. Suppression of statement about social security number
Defendant argues that his statements about his social security number to the police should be excluded. Defendant claims that this statement was made while he was in custody and was before his Miranda rights were read to him. The government disputes neither of these arguments but contends that Miranda warnings are not required for pedigree information because "routine booking information" is not considered interrogation. As should be clear from the discussion above, even if the government is correct that statements about one's social security number are not within the ambit of Miranda — an argument that I am inclined to accept — there remains the issue of whether the statement should be excluded on other grounds.
As the Second Circuit has stated:
We have held that the solicitation of information concerning a person's identity and background does not amount to custodial interrogation prohibited by Miranda, whether the solicitation occurs before or after Miranda warnings are given. In any event, "the identity of defendants is not suppressible under the exclusionary rule."United States V. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988); see also United States v. Brown, 744 F. Supp. 558, 569 (S.D.N.Y. 1990) ("[I]t is without doubt that any background information, including his name, address, nicknames, birthdate, and other information essential to his processing as an arrestee, is not protected by the constitutional requirements of Miranda and Edwards."). However, the government does not cite, nor have I found, any case that expressly holds that a social security number is pedigree information for purposes of the rule.
I need not reach that argument since the law is clear that evidence obtained pursuant to an illegal search or seizure will not be excluded if there is an independent source for the evidence. See Murray v. United States, 487 U.S. 533, 537 (1988) ("`[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.' Nix v. Williams, 467 U.S. 431, 443 (1984)."). The government opines that the defendant was arrested in April 2002 and at that time provided his social security number to agents both at his apartment and when filling out intake forms later that day. See Government's Memorandum of Law in Opposition to Romanus Isiofia's Motion to Suppress Evidence and Statements 8 n. 1; see also Tr. 144. Given this independent source, the defendant's statement about his social security number will not be suppressed.
III. CONCLUSION
For the foregoing reasons, defendant's motion to suppress the evidence seized during a search of his apartment is granted. Defendant's motion to suppress his statements about his social security number is denied. The trial, if the government plans to go forward, will begin at 9:30 a.m. on Monday, May 12, 2003. Any change in this schedule should be communicated to chambers on or before Wednesday, May 8, 2003.