Opinion
No. S1 04 Cr. 1131 (JFK).
February 25, 2005
DAVID N. KELLY, United States Attorney, Southern District of New York, New York, New York, Of Counsel: AUSA Jacob Buchdahl, AUSA Christine Meding, for the United States of America.
EDWARD D. WILFORD, ESQ., New York, New York, for Defendant Anthony Ray Anderson.
OPINION and ORDER
Defendant Anthony Ray Anderson ("Anderson") has moved under Federal Rule of Criminal Procedure 12(b)(3)(C) to suppress (1) statements made to law enforcement agents and (2) physical evidence seized from his bag on September 9, 2004, the night of his arrest. The Court held a suppression hearing on January 24, 2005 and permitted post-hearing briefing on these issues.
FACTS
At the hearing, the Government called Special Agent Robert Subach of the Drug Enforcement Administration as its witness. Agent Subach, whom the Court commends for his honesty and forthrightness on the stand, testified as follows:
On the night of September 9, 2004, Agent Subach and other members of his DEA group were conducting surveillance of Michael Theriault ("Theriault"), a suspected distributor of crystal methamphetamine. (Tr. at 5-6). Agent Subach was assigned to watch Theriault's studio apartment, located at 232 East 2nd Street in Manhattan. (Id. at 6; Anderson Decl. ¶ 2). During the night, other DEA agents arrested Theriault and brought him back to the apartment. (Tr. at 7). Agent Subach asked Theriault if he and the other agents could search Theriault's apartment, and Theriault consented in writing. (Id.). Before Theriault consented to the search, however, he told the agents that he had guests in the apartment and was hesitant to give the agents consent to search his guests' belongings. (Id. at 8).
Citations to "Tr." refer to the transcript of the evidentiary hearing on January 24, 2005.
At around 10:00 p.m., Agent Subach used Theriault's keys to open the apartment door. (Id. at 8, 10). He was accompanied by three other agents and Theriault. (Id. at 13). As Agent Subach entered the apartment, he stated that he and others were "police" and that "Michael" (Theriault) was with them. (Id. at 9). Agent Subach testified that he spoke in a calm voice because he did not want to make anyone in the apartment nervous. (Id. at 10). When he entered, Agent Subach was wearing his DEA badge around his neck. (Id. at 10). Anderson contends that the guns of the agents "were clearly visible" (Anderson Decl. ¶ 4), but Agent Subach testified that, to the best of his recollection, his gun was holstered when he entered the apartment. (Tr. at 11).
When Agent Subach entered, he saw Anderson and co-defendant Michael Morrow ("Morrow"), sitting on a couch in the apartment's seating area. (Id. at 9, 11-12). Agent Subach walked toward Anderson and Morrow, told them to stand up and raise their hands and "moments later" handcuffed Anderson. (Id. at 11-13). Another agent handcuffed Morrow. (Id.). Theriault was placed in the bathroom to keep him away from the other individuals in the apartment. (Id. at 14). Once Anderson and Morrow were in handcuffs, another agent searched the couch for weapons. (Id. at 12). No drugs were found, and Anderson and Morrow sat back down on the couch. (Id.). After Anderson and Morrow were secured and the agents had swept the apartment for the presence of other people, the DEA team began its search of the apartment. (Id. at 14).
Shortly thereafter, Agent Subach interrupted his search activities and went over to the couch where Anderson and Morrow had been sitting in handcuffs for approximately five to fifteen minutes. (Id. at 14-15). Two other agents were in the vicinity of the couch. (Id. at 15). Agent Subach saw a bag on the floor next to one of the other agents, approximately three feet away from Anderson, and he asked Anderson if the bag was his. (Id. at 15, 22). Agent Subach did not advise Anderson of his Miranda rights prior to asking him this question. (Id. at 17).
In response to Agent Subach's question, Anderson stated that the bag was his. (Id. at 17). Agent Subach then asked Anderson if the agents could search the bag, and Anderson replied in the affirmative. (Id. at 17-18). Agent Subach did not tell Anderson that he was not required to consent to a search of his bag, nor did he tell Anderson that he must consent to a search. (Id. at 20). One of the agents (Agent Subach did not recall who) searched the bag and discovered what appeared to be crystal methamphetamine, as well as some pills. (Id. at 18). Agent Subach asked Anderson, in substance, "What is this?" (Id.). Anderson replied that he had found the narcotics in the apartment while cleaning up. (Id.). The agents subsequently placed Anderson under arrest. Agent Subach explained that Anderson would have been arrested that night anyway "if certain events took place" because he had participated in an earlier crystal methamphetamine transaction with Theriault. (Id. at 21, 35).
DISCUSSION
I. Anderson's Statements
Anderson moves to suppress the statements he made to agents inside Theriault's apartment because he was subjected to custodial interrogation without the benefit of a Miranda warning. The Government does not dispute that Anderson was in custody at the time agent Subach spoke to him about the bag. The Government contends that Agent Subach did not "interrogate" Anderson; therefore, Anderson's statement that the bag belonged to him should not be suppressed.
The Government advised Anderson's counsel in a letter dated January 21, 2005 that it does not intend to use Anderson's statement about the drugs found in his bag during its case-in-chief at trial. (Gov't Post Hearing Mem. at 6 n. 2).
The Miranda safeguards are triggered "whenever a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The term "interrogation" "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest or custody) that the police should know are reasonably likely to elicit an incriminating response." Id. at 301. "Routine questions . . . ordinarily innocent of any investigative purpose do not pose the dangersMiranda was designed to check." United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989).
The evidence developed at the suppression hearing establishes that Agent Subach asked Anderson three questions in the absence of a Miranda warning: 1) Did the bag belong to him? (2) Would he consent to a search? and (3) What is this? The first question was not interrogation. Agent Subach's request that Anderson identify the bag was both natural and routine in light of Theriault's concern that his written consent to search the apartment should not extend to his guests' luggage. The question was not designed to elicit an incriminating response. See United States v. Avant, No. Cr. 91-431-FR, 1992 WL 55827 at *3 (D. Or. Mar. 5, 1992) (denying motion to suppress a robbery suspect's identification of two bags and a coat as "mine" when police questioned the suspect on board commercial jetliner).
The second question addresses the separate issue of consent, which is discussed infra in Part II. The third question no longer poses a problem because the Government does not plan to use Anderson's response during its case-in-chief. The Court notes, however, that this question was interrogation, and Anderson's response would be inadmissible if the Government intended to use it. See Harryman v. Estelle, 616 F.2d 870, 873 (5th Cir.) (en banc), cert. denied, 449 U.S. 860, 101 S. Ct. 161, 66 L. Ed. 2d 76 (1980) (holding that police interrogated suspect when officer found a powder-filled condom on suspect's person during a search incident to arrest and asked, "What is this?").
II. The Search of Anderson's Bag
Anderson moves to suppress the drugs recovered from his bag on the grounds that his consent to the agents' search of the bag was coerced. The Government responds that Anderson's consent was completely valid and in no way coerced.
At the threshold, there is no doubt that the DEA agents were lawfully inside Theriault's apartment. While the Fourth Amendment bars warrantless searches of the home in the absence of exigent circumstances, United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978), one with access to the area searched and authority over it may consent to a search of the area. United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 1981). Theriault executed a written consent to search his apartment. In fact, Agent Subach opened the apartment door with Theriault's keys. The record does not indicate in any way that Theriault was coerced into giving this consent.
Next, the Court must determine whether the agents coerced Anderson into giving consent to search the bag. The test is an objective one — "what would the typical reasonable person have understood by the exchange between the officer and the suspect?"Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L.Ed. 2d 297 (1991). Ultimately, the Court determines whether consent is free and voluntary by assessing the totality of the circumstances. United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995).
Anderson contends that his search was coerced because he was placed on the couch, in handcuffs, for up to fifteen minutes and asked questions without the benefit of a Miranda warning. (Def. Post-Hearing Mem. at 12). Defendants cite no case, and the Court knows of none, that requires a Miranda warning prior to the defendant's consent to search. Moreover, custody alone is insufficient to vitiate consent. United States v. Puglisi, 790 F.2d 240, 243 (2d Cir. 1986). There is no doubt that Anderson was in custody when he gave the consent, but the totality of circumstances demonstrates that the consent was freely given. Agent Subach testified that Anderson was detained for no more than 15 minutes before the search of the bag; that he addressed Anderson in a calm voice, from a respectful distance; and that he asked Anderson only once for consent to search the bag. (Tr. at 14-15, 19-20). Even if, as Anderson claims, the guns of the agents "were clearly visible," Agent Subach did not draw his weapon or otherwise threaten Anderson in order to gain his consent. (Id. at 21).
While it is true that Agent Subach did not advise Anderson of his right to refuse consent, "knowledge of the right to refuse consent is not a requirement to a finding of voluntariness, although it may be factor in ascertaining whether the consent was coerced." Garcia, 56 F.3d at 422-23. The failure to give Anderson this warning does not alter the total mix, as explained above.
Finally, it is of no significance that Anderson's consent to search was oral and not written. Oral consent is sufficient consent, particularly given that Anderson makes no argument that his consent was ambiguous or merely acquiescent to police authority. Anderson argues that the failure to obtain written consent, in light of the written consent obtained from Theriault and Agent Subach's testimony that Anderson was going to be arrested that night anyway, illustrates "the mind set of the agents in how they were conducting their interaction with Mr. Anderson." (Def. Post-Hearing Mem. at 12). Again, consent is measured objectively. Regardless of the "mind set" of Agent Subach or the other DEA agents, the Court finds that the agents were entirely reasonable in believing that Anderson had consented to the search.
CONCLUSION
As the Government does not intend to use Anderson's statement concerning the drugs found in his bag, the only statement that poses any Constitutional concern is no longer at issue. Accordingly, the motion to suppress is denied.SO ORDERED.