Opinion
No. 00 Cr. 388 (RPP).
December 12, 2000.
Counsel for Government: Mary Jo White United States Attorney for the Southern District of New York. By: Steven R. Peikin, AUSA.
Counsel for Fred Moldofsky: Leonard F. Joy The Legal Aid Society Federal Defender Division for the Southern District of New York By: Cary A. Bricker, Esq.
OPINION
Now pending before the Court is Defendant's motion for suppression of evidence seized in the March 30, 2000 warrantless search of his apartment, brought pursuant to Rules 12 and 41 of the Federal Rules of Criminal Procedure. For the reasons that follow, the motion is denied.
Background
On March 29, 2000, Assistant United States Attorney Steven R. Peikin and Postal Inspector Thomas F.X. Feeney appeared before Magistrate Judge Kevin Nathaniel Fox of the Southern District of New York and presented him with a sealed affidavit, sworn to by Inspector Feeney, applying for an arrest warrant for Fred Moldofsky, residing at 2120 El Paseo Street, Apartment 802, Houston, Texas. (Notice of Mot., Bricker Decl. (hereinafter "Bricker Decl."), ¶¶ 2-6; Notice of Mot., Ex. C (hereinafter "Sealed Aff."), ¶¶ 2-3; Tr. at 44-45.) The sealed affidavit presented evidence that Defendant posted a fraudulent press release concerning the second quarter expected operating results of Lucent Technologies ("Lucent") and messages relating thereto on the Internet, after which Lucent's stock price dropped. (Sealed Aff. ¶ 4.) Judge Fox issued the arrest warrant (Bricker decl. ¶ 5), and, early the next morning, on March 30, 2000, several Postal Inspectors located in Houston went to Moldofsky's apartment and arrested Moldofsky (Bricker Decl. ¶¶ 6-8). Subsequently, Defendant was indicted in the Southern District of New York on one count of securities fraud in violation of Title 15, United States Code, Sections 78j(b) and 78ff.
The affidavit itself is written as an application for a search warrant and an arrest warrant. The Government explains that the affidavit as it was presented to Judge Fox was intended as an application only for an arrest warrant and that reference to the search warrant was included so that the same affidavit could be presented to a judge in Houston who would have the requisite jurisdiction to issue a search warrant. (Mem. in Opp. at 3; Transcript of Sept. 12, 2000 hearing (hereinafter "Tr."), at 44-47.) Judge Fox issued the arrest warrant only because, pursuant to Rule 41(a) of the Federal Rules of Criminal Procedure, he lacked jurisdiction to issue the search warrant because neither the premises nor Moldofsky were within the Southern District of New York. As matters developed, the affidavit was never presented to a judge in Houston in an application for a search warrant.
The motion for suppression is supported by a Declaration submitted by Defendant on May 25th, 2000 (hereinafter "Moldofsky Decl."). Paragraphs 1 through 12 of the Moldofsky Declaration read as follows:
1. I am the defendant in this criminal case and I make this declaration in support of a motion pursuant to Rules 12 and 41 of the Federal Rules of Criminal Procedure. All statements made herein are based on information and belief.
2. On March 30th 2000 in the early morning hours approximately six federal agents came to my home and knocked repeatedly on my front door at 2120 El Paseo Street, Apartment 802, Houston, Texas.
3. When I opened the door the agents them [sic] informed me that the [sic] they had a warrant for my arrest.
4. Several of the agents entered my home and instructed me to sit down in a chair in my livingroom. I did so.
5. While I remained in the chair, one of the agents asked if I was willing to sign a waiver of my Miranda rights. (Waiver appended as Exhibit A). I indicated that I would sign the form.
6. After I signed the Miranda waiver form, several of the agents began asking me questions.
7. During this period one of the agents referred to a second second [sic] document in his possession that allowed the agents to search my premises should I agree to sign it.
8. The same agent then told me that if I did not agree to sign the consent to search form, I may have to sit in my apartment for hours until they obtained a search warrant from a judge. Lie made clear that to me that they would definitely get the search warrant and would search my premises irrespective of whether I signed the consent to search form.
9. I understood the agent to mean that if I did not sign the consent form, I would remain in police custody, in my home, for a number of hours, until the agents returned with a search warrant and conducted a search.
10. Under these circumstances, as presented to me by the federal agents, I felt that I had no choice but to sign a consent to search form.
11. I did, in fact, sign the consent to search form (Exhibit B) after which the agents conducted a thorough search of my apartment. They confiscated many items from my apartment, some of which, including a computer and documents, I understand the Government intends to introduce as evidence against me at trial.
12. My lawyer informs my [sic] that by effectively coercing me to sign a consent form to search my premises, the agents violated my Fourth Amendment rights against unreasonable search and seizure.
At the hearing, the Government did not produce Postal Inspectors John Dent ("Dent") and Robert Cregger ("Cregger"), the witnesses to Moldofsky's executions of the Miranda "Warning and Waiver of Rights" form and the "Consent to Search" form. Instead, the Government called one of the two other Inspectors who participated in Moldofsky's arrest, Inspector Richard LaBoda ("LaBoda"). LaBoda testified as follows:
On the afternoon of March 29, 2000, the Postal Inspectors in Houston were put on notice by Dent, the supervisor, that there was a possible arrest warrant involving stock fraud or securities fraud coming out of New York for the Houston area. (Tr. at 6.) The following morning, LaBoda was called to the office by Dent and briefed, along with Cregger and Carlson, on "Mr. Moldofsky, where he lived, the apartment and that we were going to take him into custody as soon as we could that morning." (Tr. at 7.) The four Inspectors, in business attire and with guns holstered, arrived at Moldofsky's address in a gated community at about 6:30-6:45 am. (Tr. at 7-8.) Moldofsky did not respond to the Inspectors knocking on his door, so the Inspectors, who were awaiting the arrival of Inspector Feeney from New York, waited and watched the apartment. (Tr. at 9-10.)
At 8 a.m., the blinds in Moldofsky's apartment opened, and Dent went up and knocked on the door. (Tr. at 10.) When Moldofsky opened the door, the Inspectors entered the apartment and proceeded to place him under arrest. (Tr. at 10-11, 40.) Moldofsky was told to sit down in a chair. (Tr. at 11-12.) He was not handcuffed until the Inspectors transported him from the apartment. (Tr. at 52.) After the Inspectors asked questions to verify Moldofsky's identity and ensure that no one else was in the apartment (Tr. at 23), Dent Mirandized Moldofsky, and Moldofsky signed theMiranda Warning and Waiver of Rights form (Tr. at 14-15). The form bears the time of 8:05 a.m. on March 30, 2000. (Notice of Mot., Ex. A.)
Throughout the questioning, Moldofsky continuously denied that he was the person whom the Inspectors were seeking, saying, "`There must be some mistake, you have got the wrong guy.'" (Tr. at 17.) The Inspectors responded that the warrant was for Fred Moldofsky, that he was under arrest, and that he would have to dispute the issue of identity later before the judge. (Tr. at 17-18, 26.) The Inspectors then asked him about the computer system and if he was the person who used it for day trading. (Tr. at 18.) Moldofsky continued to ask what the arrest was concerning, and the Inspectors told him that they did not know the details of the case, except that it "had to do with securities fraud and using the computer with the stock market transactions," and that there were two Inspectors coming from New York. (Tr. at 18.) At some point, LaBoda told Moldofsky, "`You are under arrest. We are going to take you downtown to the court and you will go before the court and you will be able to tell the judge that they have got the wrong guy or whatever, but for now you are under arrest.'" (Tr. at 19.) He also told Moldofsky that when they went downtown he could ask the Inspectors from New York more about the charges. (Tr. at 27.)
During this time, Dent and Cregger left the apartment and went out on the porch to talk by cellular telephone to the Houston and New York U.S. Attorney's Office. (Tr. at 2 1-22.) LaBoda testified that when Dent came back from the porch after making the phone call, he said, "[W]hat we are going to do, we are going to transport you downtown to our offices and process you, and you will be able to talk to the [I]nspectors. We are going to lock up your apartment and secure it and he told them [sic] at some point there would be a search warrant." (Tr. at 28.) Thereafter, the Inspectors discussed amongst themselves, within five to six feet from Moldofsky, "within earshot," whether to ask Moldofsky for consent to search the premises. (Tr. at 22, 50.) They decided that "[s]ince we were there why not ask him for a consent search." (Tr. at 22.)
LaBoda testified that Dent said to Moldofsky, "`There is a procedure we use where we can do a consent search. We have a form. Will you sign and give us permission to search your apartment?'" (Tr. at 30.) Moldofsky said, "`Well, how do we do that? What does that entail?'" (Tr. at 31.) Dent showed him the form and said, "`[T]his is how it is done.'" (Tr. at 31.) Dent started reading the Consent to Search form and then had Moldofsky read it out loud. (Tr. at 31.) The Consent to Search form bears Moldofsky's signature and those of Dent and Cregger as witnesses, as well as the date and time, 8:20 am. on March 20, 2000. (Notice of Mot., Ex. B.)
At a hearing on Defendant's motion, Inspector LaBoda acknowledged the accuracy of paragraphs 3-7 of the Moldofsky Declaration but denied that each of the sentences in paragraphs 8 and 9 were correct. (Tr. at 35-37.) Paragraph 8 reads as follows:
8. The same agent then told me that if I did not agree to sign the consent to search form, [may have to sit in my apartment for hours until they obtained a search warrant from a judge. He made clear that to me that they would definitely get the search warrant and would search my premises irrespective of whether I signed the consent to search form.
LaBoda also testified that the paraphrase of the content of paragraph 9, that Moldofsky was told that "if he didn't sign the consent-to-search form he would remain in the apartment for several hours," was incorrect. (Tr. at 37.)
Moldofsky did not testify at the hearing to amplify his Declaration.
Discussion
I. Consent to Search
A warrantless search is "per se unreasonable" under the Fourth Amendment, absent certain exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). One such exception is when a person with authority voluntarily gives his or her consent to search the premises. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When the government is attempting to justify a warrantless search on the grounds that there was consent to search, the government has the burden of proving by a preponderance of the evidence that the consent was "`freely and voluntarily given.'" Id. at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983).
Voluntariness is determined under a "totality of all the surrounding circumstances" test. Schneckloth, 412 U.S. at 226. The factors to be considered in assessing voluntariness include: youth, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged nature of questioning, and use of physical punishment. See id. (internal citations omitted). To establish voluntariness, the Government must show the exercise of free will by Defendant, not simply an acquiescence to authority. See Bumper, 391 U.S. at 548-49 ("When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." (citations omitted)); Schneckloth, 412 U.S. at 248 ("[T]he Fourth and Fourteenth Amendments require that [the government] demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied."); United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993) ("Consent must be a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority." (internal citations omitted)).
It is established that a statement by the police that they have a search warrant when they do not is sufficiently coercive that any consent given under those circumstances is deemed involuntary. See Bumper, 391 U.S. at 550. Because the individual has been told that a valid search warrant exists, any indication of cooperation or agreement is simply an acquiescence to authority, not a voluntary act establishing consent. See id. at 549 n. 14. At issue in this case is the related question of whether statements made by the Inspectors that they would receive a search warrant were coercive enough to show that the consent to search given by Defendant was not voluntary. Here, Moldofsky claims in his Declaration that his consent was not voluntary because he felt he had no choice but to sign the consent to search form. (Moldofsky Decl. ¶ 10.)
The Second Circuit has held that statements by the police informing a defendant that they will apply for a search warrant if the defendant does not consent to a search are not coercive in and of themselves. In United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983), the Circuit held that a statement that the police could apply for a search warrant was, "clearly true in light of the ample evidence of illegal activity, [and] does not vitiate the consent since advising a person of the fact that a search warrant can be obtained does not constitute coercion." Such statements that simply explain to the defendant the course of events to be followed if he or she does not consent are informative, not coercive. "[T]he well founded advice of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion." See United States v. Faruolo, 506 F.2d 490, 495 (2d Cir. 1974). Similarly, in United States v. Yu-Leung, 51 F.3d 1116, 1119 (2d Cir. 1995), the Second Circuit upheld the lower court's ruling that the defendant voluntarily gave consent to search his house despite the fact that the police told him that they would remain in his house until they received a search warrant.
Beyond the coercion inherent in the fact of arrest, the totality of the circumstances suggest a finding of voluntariness. Moldofsky was not arrested at the point of a gun, nor was any force applied to him in effecting the arrest. There is no showing that the entry to his apartment was intrusive. Cf. United States v. Wilson, 11 F.3d 346, 350-51 (2d Cir. 1993). He was not handcuffed; he was just told to sit in a chair in his own living room. (Tr. at 12, 52.) Moldofsky was a non-practicing dentist and spoke clear English. (Tr. at 13, 16-17.) He was relatively well educated and presumably of high intelligence, and he voluntarily signed aMiranda Warning and Waiver of Rights form. He responded to questions about his computer without being threatened and discussed the nature of the charge against him. Prior to giving his consent to search, Moldofsky had been advised of his constitutional right under Miranda to the advice of a lawyer at any stage of the questioning. (Moldofsky decl. ¶ 5.) Moldofsky had also read the consent to search form out loud, acknowledging being informed of his constitutional right not to have a search made of his premises without a search warrant and of his right to refuse to consent to such a search. Cf. Wilson, 11 F.3d at 350-51. Specifically, Moldofsky read out loud, "This written permission is being given by me . . . voluntarily and without any threats or promises of any kind." (Tr. at 31; Notice of Mot., Ex. B.) The form also contained a statement acknowledging that anything discovered could be used against him in a criminal proceeding. (Id.) Furthermore, he signed the Consent to Search form within twenty minutes of his arrest, without prolonged questioning, and without any physical abuse or threats of physical abuse.
Moldofsky's sole evidence of coercion is based on his assertion that Inspector Dent made a statement to him that if he did not consent to the search, he would be held in his apartment in police custody for hours while the Inspectors got a search warrant from a judge, an assertion that is contradicted by the testimony of Inspector LaBoda. Inspector LaBoda maintains that Moldofsky's statement in paragraph 8 of his Declaration that, "The same agent then told me that if I did not agree to sign the consent to search form, I may have to sit in my apartment for hours until they obtained a search warrant from a judge," is incorrect. (Moldofsky Decl. ¶ 8; Tr. at 37.) Moldofsky has not contradicted LaBoda's testimony that Dent told Moldofsky several times in the preceding fifteen minutes that they would take him downtown where he could find out about the details of the charges from the Inspectors arriving from New York and convince the judge that he was the wrong man. Accordingly, under a totality of these circumstances, Moldofsky's allegation that he felt coerced because Dent threatened him with sitting in his apartment for hours in police custody if he did not consent to a search is not reasonable or credible.
Admittedly, Inspector LaBoda was not the best witness to call to testify at the hearing because he did not supervise or witness either theMiranda Warning and Waiver of Rights or the Consent to Search forms as had Inspectors Dent and Cregger. The Government should have called Inspector Dent, the supervisor and the Inspector who actually spoke with Moldofsky about the consent to search. LaBoda was an assisting arresting officer and, thus, not as attentive to the exact words used by Dent in speaking about the consent form with Moldofsky. Accordingly, although LaBoda was clear that Moldofsky was never threatened that if he did not sign the consent form he would have to sit in his apartment for hours in police custody while the Inspectors went to get a search warrant, he was unclear about exactly what Dent said, and he used inconsistent language describing the words used by Dent about whether a search warrant would be obtained.
Examples of the sloppy and varied language LaBoda used in his testimony to explain what transpired are as follows:
• "Dent, the supervisor, told Mr. Moldofsky that we would secure the apartment and we believed that there would be a search warrant later on." (Tr. at 21.)
• Dent told Defendant, "We are going to lock up your apartment and secure it and he told them [sic] at some point there would be a search warrant . . . . I believe at that point John Dent said we were seeking a search warrant." (Tr. at 28.)
• "John Dent had told Mr. Moldofsky that at that point he was going to be taken into custody, taken back to our office and we were probably going to secure his apartment until we can get a search warrant." (Tr. at 30.)
• Before he consented to the search, Dent told Defendant that the Inspectors would secure the apartment and that they would obtain a search warrant later on. (Tr. at 49.)
Although these statements contain what may seem like minor variations, the exact language used and the meaning it conveyed is important to the determination of voluntariness.
The next sentence of Moldofsky's Declaration states, "He made clear that to me that they would definitely get the search warrant and would search my premises irrespective of whether I signed the consent to search form." (Moldofsky Decl. ¶ 8.) This sentence, however, is not proper evidence because neither it nor any other portion of the Declaration purports to identify what Inspector Dent said to cause such a belief in Moldofsky. Even if true, these statements may or may not constitute coercion. Inspector Dent did have good grounds to believe that a search warrant would be issued. Thus, Dent's alleged statement that he would obtain a search warrant could be found to be informative and may not suffice to show coercion. See United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983); United States v. Lace, 669 F.2d 46, 52-53 (2d Cir. 1982); United States v. Faruolo, 506 F.2d 490, 495 (2d Cir. 1974).
The sealed affidavit, sworn to in New York, had been found sufficient for Magistrate Judge Fox to issue an arrest warrant for Moldofsky on Internet securities fraud. By its terms, the affidavit was drafted to be presented for a search warrant. A judge presented with Inspector Feeney and the same affidavit, confirmed by Dent's information about Moldofsky's arrest in the apartment, his possession of a computer there, and his admission to day trading, could find sufficient probable cause for issuance of a search warrant of Moldofsky's apartment for evidence concerning the crime with which Moldofsky was charged. Accordingly, Inspector Dent's statements could represent a valid judgment by an experienced Postal Inspector and could be regarded as informative, not coercive, under the totality of the circumstances. See United States v. Yu-Leung, 51 F.3d 1116, 1119 (2d Cir. 1995); Faruolo, 506 F.2d at 495. On the other hand, a Court could view these circumstances as coercive to the listener like the false statement in Bumper that the agents had a search warrant. See Bumper v. North Carolina, 391 U.S. 543, 548-50 (1968). However, because inspector Dent was not called as a witness and Moldofsky has not provided the Court with the exact words spoken, and because it is unnecessary in view of the next section of this Opinion, this Court will not attempt to resolve this constitutional question.
II. Inevitable Discovery
Even if Defendant's consent to search was not given voluntarily, the motion to suppress is denied because the Government has shown that the evidence would have been inevitably discovered.
The Supreme Court first relied on the doctrine of inevitable discovery in Nix v. Williams, 467 U.S. 431 (1984). In Nix, the Court allowed the admission of evidence obtained as a result of the illegal questioning of a defendant on the theory that the same evidence would have ultimately been discovered in a lawful manner, had the illegal questioning not occurred. See id. at 441-48. "[I]f the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings." Id. at 447.
The Second Circuit applied the doctrine of inevitable discovery specifically to cases in which the method of inevitable discovery would have been a search warrant in United States v. Whitehorn, 829 F.2d 1225 (2d Cir. 1987). In that case, the Circuit focused on several factors, including the amount of probable cause, the extent that the warrant process was complete before the search, and whether a warrant was ever actually issued. See id. at 1231-32. The Circuit ultimately held that, "Where a court can conclude from the search warrant affidavit that probable cause for the search existed, without reference to the tainted information, the search remains valid." Id. at 1231.
In United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995), the Second Circuit refused to admit evidence under an inevitable discovery theory, in part, because it was not clear that the police had sufficient probable cause to obtain a warrant, and the application for the warrant was still in progress at the time of the search. In addition, the police used information obtained in the search in an attempt to establish probable cause for the search warrant. See id. at 474. In refusing to admit the evidence, the court noted that, "Clearly, the doctrine of inevitable discovery requires something more where the discovery is based upon the expected issuance of a [search] warrant" — something more than "using the preponderance of the evidence standard to prove inevitability." Id.
In cases where the method of inevitable discovery is an expected search warrant, it is necessary to analyze carefully the arguments for inevitable discovery. The very purpose of requiring the police to apply for a search warrant is to have a detached and neutral magistrate review the evidence and make an independent determination of probable cause. See United States v. Lavan, 10 F. Supp.2d 377, 387-88 (S.D.N.Y. 1998). If the police are allowed to offer evidence after the search to support a finding of probable cause, there is no motivation to pursue a warrant. Therefore, the evidence needs to be very clear that the police would have obtained a search warrant without the illegally obtained evidence. Here, the evidence in the sealed affidavit and confirmed by the Inspectors' observations was more than sufficient.
In this case, although the Inspectors did not attempt to apply for a search warrant prior to the search, which occurred at 8:20 am., they already had a completed affidavit to be used in support of an application for a search warrant. The affidavit, which is the same affidavit the Government used to apply for the arrest warrant, contained extensive details of the alleged crime and facts connecting Defendant and Defendant's computer and apartment to the offense. This is not a case like Cabassa in which the government attempted to use evidence found in the search to bolster the warrant application. Here, a sealed affidavit submitted the day before to a magistrate judge contained evidence sufficient to show probable cause existed prior to the search. In addition, it does not appear that the police refrained from seeking a warrant because they hoped to find evidence to bolster their application. Rather, the Inspectors did not secure a warrant because they were waiting for the affiant to arrive in Houston in order to make the application for a search warrant to a judge within the district as required by Rule 41 of the Federal Rules of Criminal Procedure. (Mem. in Opp. at 16.)
For these reasons, the completed affidavit offered sufficient probable cause that a lawful search warrant would have been issued by a magistrate judge in Houston. There is no showing that the evidence actually obtained in the search would not have been recovered in a later search. The evidence would have been inevitably discovered.
Conclusion
The evidence would have been inevitably discovered pursuant to a lawful search warrant. The motion to suppress is therefore denied.
IT IS SO ORDERED