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concluding that once an item had been taken from defendant and reduced to law enforcement's exclusive control “the justifications for the search incident to arrest evaporated: no longer could [defendant] access the bag to obtain a weapon or destroy evidence”
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09 CR 331 (HB).
June 8, 2009
OPINION ORDER
Defendant Robert Scott ("Scott") is charged with bank fraud in violation of 18 U.S.C. § 1344(1) and (2) and conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. Scott moves (1) to dismiss the fraud counts as duplicitous; (2) to suppress statements allegedly made in response to a custodial interrogation on the day of his arrest; (3) to suppress physical evidence obtained as the fruit of an unlawful arrest or, in the alternative, as a consequence of an improper search; and (4) to compel the Government to produce a bill of particulars. I heard argument and held an evidentiary hearing on the motion to suppress on June 2, 2009. For the reasons that follow, Scott's motions are DENIED, except with respect to his motion to suppress the physical evidence recovered from the bag he carried at the time of his arrest and for which he did not provide written consent to search (i.e. miscellaneous receipts and documents), which motion is GRANTED.
An initial indictment was filed on April 6, 2009 charging Scott with a single count of bank fraud (the "Original Indictment"). A superseding indictment against Scott was filed on May 26, 2009, after the instant motion was filed (the "Superseding Indictment"). The Superseding Indictment charges four separate counts of bank fraud as well as a conspiracy charge. Count II of the Superseding Indictment is identical to the sole count of the Original Indictment.
I. FACTUAL BACKGROUND
On March 10, 2009 at approximately 1:30 P.M., Scott was arrested by seven U.S. Postal Inspectors outside of a pizzeria in the Union Square area of Manhattan. Declaration of Robert Scott, dated May 14, 2009 ("Scott Decl.") at ¶ 1; Transcript of June 2, 2009 Hearing ("Tr.") at 7. The inspectors, who had a warrant for Scott's arrest signed by Magistrate Judge Maas, surrounded Scott and his companion Joseph Taylor, displayed their badges and identified themselves as police officers, and placed Scott and Taylor under arrest. Tr. at 8, 46. The inspectors did not display their weapons during the course of the arrest and Scott did not resist. Tr. at 9.
At the suppression hearing, Postal Inspector Dennis O'Connell ("O'Connell") testified that Scott and Taylor were separated and handcuffed and that he briefly searched Scott before placing him into the back seat of a waiting vehicle. Tr. at 7-9. Postal Inspector Mark Spirko ("Spirko") testified that he attended to Scott's companion Taylor, but saw Scott put down a backpack he was carrying as the other inspectors placed him under arrest. Tr. at 47. After Scott was handcuffed, Spirko picked up the bag and placed it into the vehicle in which Taylor was transported. Tr. at 47. Spirko testified that when he put the bag in the trunk of the vehicle the top of the bag was partially unzipped so that he could see a laptop computer inside. Tr. 62.
Scott was transported by car to the U.S. Postal Inspection Service ("USPIS") office at 90 Church Street in lower Manhattan. O'Connell rode in the back seat of the car next to Scott and during the drive read Scott Miranda warnings from a laminated card issued by the USPIS. Tr. at 10-11; GX-11. Scott said nothing in response. Tr. at 13.
At USPIS headquarters, Scott was taken to an interrogation room where O'Connell conducted a more thorough search of Scott's person. Tr. at 14. O'Connell testified that he conducted the second search for safety purposes because his initial search was "a very quick search to get him off the street." Tr. at 15. O'Connell's search recovered a cellular telephone, wallet, and an unspecified amount of cash, although he did not take any notes of what was found on Scott's person at that time. See Tr. at 36, 62, 64. Thereafter, some time between 2:00 and 2:20, O'Connell asked Scott a series of "pedigree" questions (e.g. date of birth, address, etc.) to complete a series of intake forms required by the U.S. Marshals to process an arrestee (the "Marshals' Forms") as well as a USPIS background information form. Tr. at 16, 39; GX-1 — GX-4. Approximately 15 minutes after O'Connell and Scott entered the interrogation room, while O'Connell was still in the process of completing the Marshals' Forms, Spirko arrived into the room.
When the Marshals' Forms were complete, Spirko pulled out a separate form entitled "Warning and Waiver of Rights" and began to go over the form with Scott. Tr. 49-50. Spirko, at Scott's insistence, showed Scott a copy of the warrant for his arrest. Tr. at 49. Scott initially said he did not want to go over the form and wanted to know more about the charges against him. Tr. at 50. Spirko testified that he explained to Scott that "to discuss the case . . . we needed to go over his Miranda [rights] first, and once we did that if any time he did not want to speak to us anymore, he could stop." Tr. at 50. Spirko then read each of five rights on the "warning" section of the form and asked Scott if he understood them. Scott answered affirmatively and initialed each bullet point and signed the form at 2:38 P.M. Tr. at 50-51; GX-5. Scott then signed the "waiver" at 2:39 P.M. Tr. 51. Each of the inspectors signed as witnesses. Id.
Spirko and O'Connell then began to question Scott. At some point during the interrogation, the inspectors asked Scott about his California driver's license. Tr. at 55. Spirko testified that when the driver's license was not found in Scott's wallet, Scott told the officers that it was in his bag. Id. Spirko then retrieved Scott's bag from his office and brought it into the interrogation room. Id. Although Spirko testified that the top of the bag was open, the record does not indicate that Scott expressly consented to a search of the bag itself.
Later in the interview, Spirko asked Scott if he would consent to a search of his computer and cell phone, and Scott agreed. Tr. 38, 56-57. Thereafter the inspectors took out a USPIS "consent to search" form, filled out identifying information about the computer and the cell phone, and read the form to Scott. Tr. at 57. Scott then signed the form. Tr. at 57. After the interview, when Scott was in another room being fingerprinted, Spirko "had a chance to look in [Scott's] bag" and found a "thumb drive" or portable computer memory device "at the bottom of the bag." Tr. at 57. When Scott returned to the interrogation room, Spirko asked Scott "if it would be all right" if the inspectors added the thumb drive to the consent form. Tr. at 58. Scott agreed and Spirko added identifying information about the thumb drive to the consent form. Id.
Although it is not clear precisely when he did so, Spirko testified that he "went through [Scott's] bag and made photocopies of everything that was in his bag." Tr. at 58. According to Spirko "there were a couple of items" that he kept, which he placed into an envelope and listed on the outside of the envelope, so he "had a record of what was there and what was taken." Tr. at 59; GX-8. These items include miscellaneous receipts and documents, airline ticket stubs, and "SIM cards" for a cellular phone. GX-8. The balance of the contents of the backpack — i.e. everything other than the computer, cell phone, thumb drive and the contents of the envelope — were ultimately returned to Scott. Tr. at 59. It is not clear from the record what ultimately happened to the cash that Spirko testified was on the table when he first entered the interrogation room, although in response to a question from Scott's counsel as to whether the inspectors conducted an "inventory" of the items taken from Scott's person, Spirko testified: "We inventoried the cash, counted the cash and filled out a form for that." Tr. at 64
Spirko testified that although he showed Scott documents during the interview, none of the documents discussed during the interview were taken from Scott's backpack. Tr. at 55.
II. DISCUSSION
A. Duplicitous Indictment
On the record at the June 2, 2009 hearing I denied Scott's motion to dismiss the indictment as duplicitous because the Second Circuit has rejected the precise argument raised by Scott here. A duplicitous count is one that alleges more than one offense, as distinct from alleging the commission of a single offense by more than one means. United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). In United States v. Crisci, 273 F. 3d 235, 239 (2d Cir. 2001) (per curiam), the defendant argued, as Scott does here, that the two subsections of the bank fraud statute, 18 U.S.C. § 1344, "describe distinct crimes rather than two ways of committing the single crime of bank fraud." The Second Circuit rejected this argument, holding that the two subsections of § 1344 define "different ways in which a defendant may commit the offense of bank fraud." Id. Recognizing thatCrisci forces my hand and in order to preserve the issue, at oral argument Scott's counsel posited that Crisci is wrongly decided. Clearly, if this is the case it is for the Circuit to decide, not me. Consequently, Scott's motion to dismiss the bank fraud counts as duplicitous must be DENIED.
B. Suppression of Post-Arrest Statements
Scott moves to suppress all statements made to the inspectors during the interrogation at the USPIS headquarters following his arrest on the alternative grounds that (1) the Miranda warning and waiver was not provided until after the interrogation, and (2) the Miranda warning and waiver was not voluntary and knowing. Scott's first argument is easily resolved. The Defendant signed a waiver form allowing the interrogation, and it notes that it was signed approximately one hour after the arrest was made. If this was not enough, both investigators testified to the same time frame. The hour-long period between the arrest and the waiver is adequately explained by the time it took to transport Scott to USPIS headquarters, for O'Connell to conduct a second and more thorough search of Scott's person, and to complete the Marshals' Forms. Consequently, I find entirely credible the inspectors' consistent testimony that Scott was warned of and waived his rights under Miranda before the interrogation commenced.
Scott's second argument also falls short because I credit the testimony of the two investigators over Scott's conclusory and self-serving statements that he did not understand the rights he was asked to waive. The prosecution bears the burden of proving by a preponderance of the evidence that a purported waiver ofMiranda rights is valid. Missouri v. Seibert, 542 U.S. 600, 609 n. 1 (2004) (citing Colorado v. Connelly , 479 U.S. 157, 169 (1986)); United States v. Anderson , 929 F.2d 96, 99 (2d Cir. 1991). To be valid, a waiver of Miranda rights must be both voluntary and knowing, and thus "the inquiry has two distinct dimensions." Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. Second, the waiver must be made "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."Id. "Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that theMiranda rights have been waived." Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
When the circumstances of Scott's arrest and interrogation are viewed as a whole it is clear that the government has met its burden. First, apart from the general circumstances of his arrest and transport to an interrogation room at USPIS headquarters — themselves potentially intimidating circumstances — there is nothing in the record that suggests Scott's waiver of his Miranda rights was the product of governmental coercion. The mere fact that Scott was initially reluctant to sign the waiver and wanted to know more about the charges against him, and that Spirko told him that to proceed to discuss the case he had to first sign theMiranda waiver was not coercive: Scott was given a choice to either sign the waiver and discuss the case, or refuse to waive his rights and wait to learn more about the charges against him. This does not constitute "coercive police activity," Connelly, 479 U.S. at 167, or the type of "deceptive stratagems" expressly disapproved of by Miranda. Anderson, 929 F.2d at 101 (citingMiranda v. Arizona, 384 U.S. 436, 476 (1966))
Second, the government meets its burden to establish that Scott's waiver was made knowingly. The prosecution offers the testimony of Spirko and O'Connell that Scott spoke English, acknowledged his understanding of the rights described in the warning by initialing to each of them. In contrast, Scott offers no credible facts that suggest how or why he failed to understand the rights being waived. Rather, he offers only the conclusory statement in his declaration that he "did not understand the implication of either form" when he signed them. Scott Decl. at ¶ 16. In sum, I find that Scott's Miranda waiver preceded his interrogation and was made voluntarily and knowingly. Consequently Scott's motion to suppress his post-arrest statements is DENIED.
C. Suppression of Physical Evidence
Scott asserts three arguments in support of his motion to suppress the physical evidence recovered on the day of his arrest: (1) that the evidence was improperly seized pursuant to an unlawful arrest that was not supported by probable cause; (2) that the inspectors conducted an unreasonable search of Scott's backpack in violation of the Fourth Amendment; and (3) that Scott's consent to search the cell phone and computer was coerced.
1. Probable Cause
Scott's argument that the physical evidence should be suppressed because his arrest was not based on probable cause falls short. "`Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.'" United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008) (quoting United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990)). "While a reviewing court should `not serve merely as a rubber stamp for the police,' it is firmly established that substantial deference should be accorded judicial determinations of probable cause." United States v.Zucco, 694 F.2d 44, 46 (2d Cir. 1982) (quoting Aguilar v. Texas, 378 U.S. 108, 111 (1964)).
Here, Scott was arrested pursuant to an arrest warrant issued by Magistrate Judge Maas which was itself based on the criminal complaint against Scott. Not only is Judge Maas' finding of probable cause entitled to substantial deference, but the criminal complaint amply demonstrates the existence of probable cause to arrest Scott for bank fraud. Consequently, the warrant for Scott's arrest was validly supported by probable cause.
2. Fourth Amendment
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . .'" U.S. CONST. AM. IV. A warrantless search is per se unreasonable unless one of a "`few specifically established and well-delineated exceptions" applies.Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). "In support of a motion to suppress evidence found in a warrantless search, the defendant must show that he had a reasonable expectation of privacy in the place or object searched." United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993). Once such a privacy interest is established, the burden falls to the prosecution to show by a preponderance of the evidence that the search was valid because it fell within an exception to the warrant requirement. Id.
Here several interrelated but ultimately distinct searches and seizures are at issue, each of which must pass Fourth Amendment muster. First, concurrent with Scott's arrest, the investigators seized the backpack that Scott carried. Second, O'Connell conducted the second and more thorough search of Scott's person, which revealed the cell phone that was on the table when Spirko entered the interrogation room. Third, the inspectors conducted a search of Scott's backpack that revealed the thumb drive and miscellaneous receipts and documents. Fourth, USPIS technicians conducted searches of the computer, thumb drive, and cell phone pursuant to the written consent signed by Scott.
O'Connell testified that he did not recall if the cell phone was recovered from Scott's person or from the bag. Tr. at 36. Spirko testified that the cell phone was on the table when he entered the interrogation room. Tr. at 62.
As discussed below, the record reflects that the computer was visible from the exterior of Scott's partially unzipped bag, both when Spirko placed it in the trunk of one of the waiting vehicles and later brought it into the interrogation room.
i. Scott's Privacy Interest in the Bag
Spirko's testimony that Scott's bag was partially unzipped at the time of his arrest raises the thorny question of whether Scott had a protected privacy interest in the bag, a question not addressed in either party's briefs. "In general, a defendant may establish that he had a right protected by the Fourth Amendment by showing (a) that he had an expectation of privacy that society is prepared to recognize as reasonable, and (b) that he had conducted himself and dealt with the property in a way that indicated a subjective expectation of privacy." Perea, 986 F.2d at 639. It is clear that the Fourth Amendment's protections extend to "`the owner of every container that conceals its contents from plain view.'" United States v. Knoll, 16 F.3d 1313, 1320 (2d Cir. 1994) (citing United States v. Ross, 456 U.S. 798, 822-23 (1982)). It is also well established that an individual has a protectable privacy interest in hand luggage such as a shoulder bag or backpack. Cassidy v. Chertoff, 471 F.3d 67, 76 (2d Cir. 2006). To establish a protectable privacy interest, a container must be "closed": "for there to be a reasonable expectation of privacy, the contents of a container should not be apparent without opening." Id. The question of whether an individual maintains a protectable privacy interest in a container that is partially open so as to reveal some, but not all, of its contents is not easily resolved.
In United States v. Ocampo, a defendant arrested in his car following police surveillance of suspected drug trafficking activity challenged the warrantless search of two unzipped bags, one inside the other, that were on the front seat of the car when he was arrested and one of which he has been observed carrying away from a suspected drug transaction. 650 F.2d 421, 426 (2d Cir. 1981). The Second Circuit held that the defendant "cannot have manifested objectively a reasonable expectation of privacy when [the bags] were concededly unzipped." But Ocampo and all the cases on which the court relied therein concern automobile searches based upon probable cause that contraband was located somewhere in the vehicle. Id.; United States v. Mannino, 635 F.2d 110 (2d Cir. 1980); United States v. Goshorn, 628 F.2d 697 (1st Cir. 1980); United States v. Macklin, 626 F.2d 684 (9th Cir. 1980). Not only are automobile searches a fundamentally distinct Fourth Amendment inquiry, it is now clear that under the facts ofOcampo the police may search any container in a vehicle so long as they have probable cause to believe there is contraband present. See California v. Acevedo, 500 U.S. 565 (1991).
To the extent it can be separated from the context of an automobile search, the concept underlying the statement in Ocampo that an unzipped bag is entitled to less than full Fourth Amendment protection traces its genesis to the plain view doctrine. In Arkansas v. Sanders, the Supreme Court stated that "[n]ot all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment" and listed two examples: (1) where the contents of a container "can be inferred from [its] outward appearance" and, (2) where "the contents of a package will be open to `plain view' thereby obviating the need for a warrant." 442 U.S. 753, 764 n. 13 (1979) abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991). Thus, when a container is partially open so as to place some of its contents in plain view, there is no need for a warrant to open the container to seize those contents: it is as if they were carried in a transparent container or one that unmistakably betrays its contents. But the mere fact that a container is partially open to reveal one of its contents does not alone justify a search of every nook, cranny or interior space of that container.
This conclusion meets the general test for a privacy interest protected by the Fourth Amendment. See, Perea, 986 F.2d at 639. First, it cannot be said that society would not recognize a privacy interest in the bottom or an inner pocket of a shoulder bag or backpack merely because a corner of a bulky object like a laptop computer pokes out from the top of the bag. Second, because one need not lock or fasten a container shut to manifest a subjective expectation of privacy for its contents, Knoll, 16 F.3d at 1321, neither must one meticulously ensure that the top of a backpack remain zipped to manifest a subjective expectation that small items carried in the bag's depths will remain private. In short, crediting Spirko's testimony that the backpack was partially unzipped so as to place the laptop computer in plain view, the inspectors needed no exception to the warrant requirement to question Scott about the computer or to ask him for consent to search its contents. However, the facts establish that Scott retained a protectable privacy interest in the interior of the backpack where the thumb drive and miscellaneous documents were found. Consequently, for the search that revealed those items to be lawful, an exception to the warrant requirement must apply.
ii. Search Incident to Arrest
A search incident to a lawful arrest is a well-established exception to the prohibition on warrantless searches. Arizona v.Gant, 129 S.Ct. 1710, 1716 (2009). "The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations" and extends to searches of "`the arrestee's person and the area `within his immediate control' . . . [i.e.] the area from within which he might gain possession of a weapon or destructible evidence." Id. (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). However, "[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Id. at 1716.
For good reason, Scott does not object that the seizure of his backpack at the site of his arrest; the inspectors were plainly authorized to impound the bag because Scott was carrying it at the time of his arrest and thus it was clearly within the area of his immediate control and could have concealed a weapon or other dangerous instrumentality. Similarly, O'Connell's second search of Scott's person at the USPIS headquarters was a permissible search incident to arrest, notwithstanding the passage of time between the arrest and the search. See, e.g., United States v.Edwards, 415 U.S. 800 (1974). O'Connell testified that his initial search of Scott on the street was quick and cursory and that he needed to confirm that Scott was not carrying any weapons for the safety of others in the office. Tr. at 15. Thus the interests from which the exception for searches incident to arrest derives, namely the protection of the law enforcement officers and preservation of evidence, justify O'Connell's second search of Scott's person. Gant, 129 S.Ct. at 1716.
However, the search-incident-to-arrest exception does not justify the search of the backpack at the USPIS headquarters after it had been taken from Scott and reduced to the inspectors' exclusive control. "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991).
Relying on precedent that established an "automobile exception" to the prohibition on warrantless searches, in California v.Acevedo, the Supreme Court overruled Chadwick as it applied specifically to containers located within an automobile. 500 U.S. 565 (1991). Acevedo holds that police may search a container located in an automobile without a warrant if they have probable cause to believe that the container itself holds contraband evidence. That decision did not undermine the validity ofChadwick's holding with respect to a search incident to arrest.
Older authority in this Circuit suggests that warrantless searches of personal effects in an arrestee's possession at the time of arrest, such as a suitcase or backpack, may be conducted at the police station and still fall within the ambit of a search incident to arrest. Thus, for example, in United States v.Edmonds, 535 F.2d 714, 720 (2d Cir. 1976), the Second Circuit held that a warrantless search at FBI headquarters of a suitcase the defendant carried when arrested at the Port Authority bus depot was justified as a search incident to arrest. Citing United States v. Edwards, 415 U.S. 800 (1974), the court stated that "once an accused has been lawfully arrested, the effects in his possession that were subject to search at the time and place of the arrest may be lawfully searched and seized without a warrant after a substantial time lapse following the arrest." Edmonds, 535 F.2d 714. But Edmonds, predates the Supreme Court's decision in Chadwick, 433 U.S. 1. After Chadwick, the Second Circuit has questioned the validity of cases that uphold, as searches incident to arrest, warrantless searches of luggage in the arrestee's possession at the time of arrest but removed from the scene and searched elsewhere. See United States v. Lartney, 716 F.2d 955, 965 (2d Cir. 1983) (questioning validity of United States v. Lam Muk Chiu, 522 F.2d 330, 332 (2d Cir. 1975) and "cases cited therein"); see also, United States v. O'Razvi, 97 Cr. 1250 (DLC), 1998 WL 405048 *7 n. 7 (S.D.N.Y. Jul. 17, 1998) (noting that Edwards has been disregarded by lower courts as a consequence of the Supreme Court's decision in Chadwick).
Although the Second Circuit has not done so expressly, other circuits have reconciled Chadwick with Edmonds, by distinguishing between "searches of the person" such as searches of the defendant's clothing (as in Edmonds) with searches of "possessions within the arrestee's control" such as the footlocker in Chadwick. See, e.g., United States v. Finley, 477 F.3d 250, 260 n. 7 (5th Cir. 2007); United States v. Monclavo-Cruz, 662 F.2d 1285, 1289-90 (9th Cir. 1981). This distinction is consistent with the emphasis placed by the Second Circuit, and most recently by the Supreme Court in Gant, on the justifications that underlie the exception for searches incident to arrest: a weapon concealed on an arrestee's person still poses a danger at the police station, whereas a weapon in the effects reduced to the officer's exclusive control does not.
Having concluded that Scott had a protectable privacy interest in the bottom of his bag, the inspectors' search of the bag at USPIS headquarters cannot be justified as a search incident to arrest. Once Spirko took possession and exclusive control of the backpack at the scene of the arrest the justifications for the search incident to arrest evaporated: no longer could Scott access the bag to obtain a weapon or destroy evidence. Moreover, the inspectors were "not allowed to simulate circumstances warranting application of the incident-to-arrest exception merely by bringing the item they wish to search into the area near where the person was arrested, or vice versa." Perea, 986 F.2d at 643. Consequently, Spirko's search of the backpack at the USPIS headquarters cannot be justified as a search incident to arrest.
iii. Inventory Search and Inevitable Discovery
The Government relies in the alternative on another well-established exception to the rule against warrantless searches, the inventory search. See Illinois v. Lafayette, 462 U.S. 640, 648 (1983) (admissible evidence recovered from inventory search of shoulder bag in possession of lawfully arrested person). "When a person is arrested in a place other than his home, the arresting officers may impound the personal effects that are with him at the time to ensure the safety of those effects to remove nuisances from the area." Perea, 986 F.2d at 643 (internal quotation marks omitted). A post-arrest inventory search is justified by the Government's interest in "averting any danger the property might pose" as well as protecting the property from unauthorized interference and the government from claims of theft of mistreatment of the impounded property. Id. (citing Colorado v. Bertine, 479 U.S. 367, 373 (1987)). "Of course `the right to [make an] inventory . . . does not carry in its wake unlimited discretion.'" United States v.Mendez, 315 F.3d 132, 137 (2d Cir. 2002) (quoting United States v. Griffiths, 47 F.3d 74, 78 (2d Cir. 1995)). The inventory search must be conducted pursuant to "established inventory procedures," Lafayette, 462 U.S. at 648, so that inventory searches do not become "a ruse for general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990); see also United States v. Lopez, 547 F.3d 364, 370 (2d Cir. 2008) (the Supreme Court has "stressed the importance" of inventory searches being conducted under "standardized procedures" to prevent investigatory searches from being subsequently justified by labeling them inventory searches).
In some circumstances the inventory search dovetails with the concept of inevitable discovery: "if there has been a lawful arrest and an immediately ensuing search is not justifiable as incident to the arrest, a motion to suppress the proceeds of the immediate search may nonetheless be denied if the contents would inevitably have been discovered in a permissible inventory search." Perea, 986 F.2d at 644 (citing United States v. Jenkins, 876 F.2d at 1088-89). In such cases, the Second Circuit has held that the government must prove three things: (1) that the police had legitimate custody of the property being searched; (2) that when the law enforcement officers in the agency in question conduct inventory searches they generally do so pursuant to "established" or "standardized" procedures; and (3) those inventory procedures would have inevitably led to the discovery of the evidence at issue. Mendez, 315 F.3d at 138 (citations omitted). The government has the burden of proof to establish inevitable discovery by a preponderance of the evidence. United States v. Heath, 455 F.3d 52, 59 n. 6 (2d Cir. 2006).
Here, it is clear that the inspectors had legitimate custody over Scott's backpack because he was carrying it at the time of his arrest. See Perea, 986 F.2d at 643 (police may impound personal effects of person arrested outside of his home). Not clear from the record, however, is whether the USPIS inspectors searched the backpack pursuant to established procedures or whether the USPIS had in place procedures that, had they been followed, would have inevitably led to the discovery of the thumb drive and the documents. Spirko's testimony establishes that the inspectors "inventoried the cash" that was found on Scott's person by filling out a form and that Spirko wrote the contents of the envelope on the outside of the envelope so he "had a record of what was there and what was taken." Tr. at 59; GX-8. But the record does not show whether these actions were taken pursuant to an established USPIS policy or if they were simply the prudent actions of a cautious investigator. Given the importance placed by the higher courts on the requirement that inventory searches be conducted pursuant to established routine so as to circumscribe the "latitude" given to police officers,Wells, 495 U.S. at 5, I cannot conclude either that the search of the backpack was a valid inventory search or that USPIS procedures were such that lawful discovery of the thumb drive and documents was inevitable. See United States v. Gorski, 852 F.2d 692, 696 (2d Cir. 1988) (single statement that "[a]n inventory was done later at [the FBI] office" insufficient to justify search as a valid inventory search). Although a few lines of testimony about USPIS's practices in conducting inventory searches elicited by the government would have resolved the issue, there was no such testimony and I certainly cannot assume that such procedures are in place.
iv. Consent
We are thus left with the issue of consent. It is beyond peradventure that the police can search an individual and his possessions if they have received his voluntary consent. Florida v. Jimeno, 500 U.S. 248, 250-51 (1990). "The scope of the suspect's consent is a question of fact, and `[t]he government has the burden of proving, by a preponderance of the evidence, that a consent to search was voluntary.'" United States v.Gandia, 424 F.3d 255, 265 (2d Cir. 2005) (quoting United States v. Isiofia , 370 F.3d 226, 230-31 (2d Cir. 2004)). "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?" Jimeno, 500 U.S. at 251.
(a) Verbal Consent to Search Backpack
The Government does not argue that Scott verbally consented to a search of his bag, but Spirko's testimony establishes that Scott told the officers his California driver's license was in the bag and this prompted Spirko to retrieve it from his office. Does a suspect who directs inspectors to his bag in response to their query about the location of his driver's license consent to a search of that bag? This may be a close question, but it is one that I decline to answer here because the government has neither placed it before me nor elicited testimony sufficient to resolve it.
(b) Written Consent to Search Computer and Cell Phone
Scott's next argument, that his written consent to search the computer and cell phone was the product of coercion, must be rejected for much the same reason that I have already concluded his Miranda waiver was voluntary. "Voluntariness is determined by reference to the "`totality of all the circumstances.'" United States v. Isiofia, 370 F.3d 226, 230 (2d Cir. 2004) (quotingSchneckloth v. Bustamonte, 412 U.S. at 227). Here, when viewed as a whole, the record amply supports the conclusion that Scott's consent was voluntary. The computer was visible from the exterior of Scott's partially unzipped bag and the cell phone was recovered pursuant to O'Connell's lawful search of Scott's person. Both inspectors testified that Scott verbally consented to the search of the computer and cell phone and that he signed the consent-to-search form without inquiry. Tr. 24-27, 57-58. The mere fact that Scott was in custody does not alone preclude a finding of voluntariness. United States v. Snype, 441 F.3d 119, 131 (2d Cir. 2006). As a consequence of his voluntary consent to search the laptop computer and cell phone, Scott's motion to suppress the evidence recovered from those items is DENIED.
(c) Written consent to Search the Thumb Drive
The validity of Scott's consent to search the thumb drive is more complicated because the inspectors recovered that item pursuant to a warrantless search not justified, so far as the record reflects, by an exception to the warrant requirement. "[E]vidence seized after an illegal search must be suppressed unless the government shows that it, in fact, resulted from `an intervening independent act of free will.'" Snype, 441 F.3d at 132 (quoting Wong Sun v. U.S., 371 U.S. 471, 486 (1963)).
Here, Scott's consent to search the thumb drive was an "independent act of free will" sufficiently attenuated from Spirko's search of the bag to be valid. On the one hand, there is close "temporal proximity" between Spirko's search of the bag and Scott's consent to a search of the thumb drive and the record does not disclose any "intervening circumstances" that broke the continuity between the illegal search and the subsequent consent. But on the other hand, the record clearly shows that Scott consistently waived rights and consented to searches calmly, knowingly and of his own free will — both before and after the thumb drive was recovered from the bottom of his bag.
Furthermore, the absence of purposeful, flagrant or bad faith violations of the Fourth Amendment supports the conclusion that Scott's consent to search the thumb drive was free from the taint of the unlawful search. Nothing in the record suggests the inspectors actions were taken in bad faith or motivated by an intent to circumvent the strictures of the Fourth Amendment. See United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1992). Moreover, as in Snype, here the illegality derives from a "gap" in the record, not from a purposeful or egregious violation of the Fourth Amendment. In Snype, neither the district court nor the Second Circuit could determine whether the entry at issue was lawful because although the government argued as much in its brief, the record was devoid of evidence as to whether the arresting agents possessed a reasonable belief that the defendant was present in the premises into which they had entered. 441 F.3d at 133-34. As a consequence, the Circuit, "like the district court," had to assume the absence of such a reasonable belief and conclude that the entry was illegal. Id. at 134. But because the illegality of the police entry that preceded the consent "derived not from its force but only from the lack of record support for a fact necessary" to justify a warrantless entry, the presumed police misconduct was not "flagrant." Id. at 135. Similarly, here the illegality of Spirko's search of the bag derives at worst from the absence of any evidence concerning established procedures for inventory searches. Although without evidence of such a procedure I must assume that they do not exist and hold that Spirko's was not a valid inventory search, the illegality is far from flagrant or purposeful. As a consequence I find that Scott's consent to search the thumb drive was a separate and independent act of free will and his motion to suppress the evidence recovered from the search of that item is DENIED.
(d) Miscellaneous Documents and Receipts
Because Scott provided no consent to search that extends to the miscellaneous documents and receipts recovered from his bag and placed by Spirko into the envelope, Scott's motion to suppress these items is GRANTED. Although Spirko's act of listing the items on the outside of the envelope bears resemblance to the type of procedure that may accompany a valid inventory search, there is no evidence that such policies were followed in this instance or by USPIS inspectors generally. It is the government's responsibility to establish the factual predicates of a lawful search. Because they have failed to do so here, the physical evidence seized from Scott's bag other than the laptop computer and thumb drive must be suppressed.
D. Bill of Particulars
Finally, Scott moves for an order compelling the government to provide a bill of particulars that (i) specifically states the nature of the bank fraud scheme; (ii) specifies the information that allegedly identifies Scott as the person who deposited the funds in the account(s) at issue; (iii) identifies such accounts; (iv) specifies which transactions are alleged to be fraudulent; and (v) specifies the amount of funds to which Scott is not entitled that he is alleged to have withdrawn from the accounts.
"Rule 7(f) of the Federal Rules of Criminal Procedure permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v.Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). "A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v.Torres, 901 F.2d 205, 234 (2d Cir. 1990) (quotation marks and citations omitted). "Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Bortnovsky, 820 F.2d at 574. A bill of particulars is not warranted to apprise the defendant of "evidentiary detail,"Torres, 901 F.2d at 234, or the precise manner in which the crimes were committed. United States v. Andrews, 381 F.2d 377, 378 (2d Cir. 1967) (per curiam), cert. denied, 390 U.S. 960 (1968). Here, the Defendant has been furnished with sufficient information to satisfy the rule and that aspect of his motion is DENIED.
III. CONCLUSION
The record is replete with evidence that Scott was cooperative and forthcoming during the interview on the day of his arrest, and had the inspectors either taken more care to follow established procedures for an inventory search or the government's lawyers taken more care to elicit testimony about such procedures, Scott's motions would have been more easily resolved. Nonetheless, Scott's motions are DENIED, except with respect to certain physical evidence recovered from the search of the bag he carried at the time of his arrest (i.e. miscellaneous documents, receipts, airline ticket stubs and "SIM cards" for cellular phones), and as to that evidence the motion is GRANTED. The trial will commence as scheduled and in accordance with the Court's individual rules.
SO ORDERED.