Opinion
02 Cr. 899 (JFK)
March 19, 2003
For the United States of America, JAMES B. COMEY, TANYA F. MILLER, New York, New York
For the Defendant, LAWRENCE H. LEVNER, ESQ., New York, New York
OPINION and ORDER
Background
Defendant Mohammad Shadid Ullah moves to suppress (1) physical evidence seized from his mailbag; and (2) statements made by Ullah to New Jersey postal inspectors in New Jersey. He is charged with a violation of 18 U.S.C. § 1341, mail fraud, in connection with an alleged scheme to defraud the Department of State Visa Program.
Facts
The following facts were established at the hearing held on November 18, 2002 and February 4, 2003:
On October 24, 2001, Rafael Guzman ("Guzman"), a civilian who lived in the neighborhood, saw a man wearing a postal uniform in the vicinity of the Port Authority Bus Terminal at 178-179 Streets in Manhattan. (Tr. 137-140). When Guzman first saw the man, there were "a lot of people behind him," and the women were shouting "grab him, grab him" and "he keeps throwing something into all of the mailboxes." (Tr. 141, 148). Guzman joined the people who were following the man and saw the man throw something into a mailbox on 178th Street, "right in front of St. Bucca restaurant." (Tr. 142). This man, the defendant, was "like frightened" and "in a hurry." (Tr. 149).
Tr.'s refers to Transcript page at the hearing. Although Mr. Guzman made a misidentification at the hearing, (Tr. 137), it is clear that the man in the postal uniform was the defendant.
Guzman followed the defendant and saw a police officer nearby. He told the officer to "come on." (Tr. 142).
Officer Michael Rosen ("Rosen") of the Port Authority Police was working inside the police station located in the Port Authority Bus Terminal at Fort Washington Avenue and 178th Street on October 24, 2001 at approximately 11:30 A.M., when he heard several people yelling and all talking at once. (Tr. 8-9). One of them came forward and stated that they had been riding on a bus with a man dressed as a mail carrier and had seen the man acting strangely by hiding his face and avoiding eye contact with other passengers. (Tr. 9-10). The man was identified by Rosen as Mohammad Shadid Ullah, the defendant. (Tr. 8).
Rosen learned that the passengers followed the defendant when he got off the bus and they watched him as he walked along the sidewalk. (Tr. 10). The people followed Ullah as he went to at least two different mailboxes, removed letters from his mailbag and "dump[ed]" them into different mailboxes. (Tr. 10-11). When defendant saw that he was being followed, he began to walk faster, kept looking over his shoulder, and seemed nervous. (Tr. 10).
Officer Rosen was aware of several anthrax-related incidents involving the U.S. Mail in the period before October 24, 2001. (Tr. 7). On September 18, 2001, anthrax-tainted letters, post marked in Trenton, New Jersey, were sent to Tom Brokaw at NBC News and to New York Post offices in New York, and these incidents were widely reported in the media. (Tr. 3-4). On October 9, 2001, letters with anthrax were sent to U.S. Senators. These letters were also post marked in Trenton, New Jersey. (Tr. 5). In the weeks before Rosen's encounter with Ullah, four postal workers at the Brentwood postal facilities by Washington, D.C., had been hospitalized with inhalation anthrax, and two of them died as a result of the exposure. (Tr. 5). Officer Rosen had discussions concerning the anthrax scare at roll call. (Tr. 7).
Rosen followed the civilians as they went through the Fort Washington Avenue exit doors to where Ullah was standing. (Tr. 11). As he left the building, Officer Rosen saw Ullah standing in front of the mailbox located by the Fort Washington doors of the bus terminal. (Tr. 11; GX 1). Ullah, with his back to Rosen as Rosen approached, was dropping something into the mailbox. (Tr. 11, 17-18).
Officer Rosen, in uniform, approached the mailbox. When the defendant looked over his shoulder and saw Rosen coming, he began to back up and "back-pedal away." According to Rosen, the defendant looked as if he were trying to "find an escape route," and appeared afraid and shocked, with a "deer-in-a-headlight" look in his eyes. (Tr. 18, 19).
Officer Rosen asked the defendant what he was doing. The defendant did not answer, and instead, "his eyes looked everywhere but at [Rosen]." (Tr. 19, 20). A witness called by Ullah, Juan Sanchez, corroborated the Rosen testimony and saw the defendant "trying to back away from [the officer]." (Tr. 160).
Rafael Guzman also saw Rosen approach the defendant and saw defendant "right there putting letters into a mailbox." (Tr. 142). According to Guzman, when the police officer approached him, the mailman began to wave both hands in the air in front of his face. (Tr. 147).
Although the defendant was dressed as a mail carrier, his appearance was disheveled; his shirt was pulled out, dirty, and ragged. Defendant's mailbag was dirty and torn. (Tr. 19).
After Rosen asked Ullah what he was doing, Ullah turned his back and started to walk away and the officer grabbed him by the arm. Ullah was uncooperative and struggled to get out of Rosen's grasp. Officer Rosen then placed the defendant up against the wall of the Port Authority Bus Station and handcuffed him. (Tr. 20, 21). There is no suggestion in Rosen's testimony that defendant gave Rosen his identification at this point as defendant claims. (Tr. 174). Rosen was not asked questions about this on cross-examination. I conclude this did not happen. Approximately "five seconds" passed from the moment Rosen first saw the defendant to the point at which he was handcuffed. (Tr. 21).
Rosen went into the Port Authority Police Station with defendant. Rosen held Ullah's arm in one hand and the mailbag in the other. (Tr. 22). Rosen believed that Ullah's mailbag contained anthrax, and that he and others had been exposed. (Tr. 22-24, 56, 59). He did not believe the defendant was a real postal worker. (Tr. 27).
Ullah testified on his own behalf at the hearing and did not contest most of the facts set forth above. He did testify that although Rosen did not ask him for identification, he supplied Rosen his wallet with identifying papers. (Tr. 174, 196). As noted above, the Court rejects Ullah's statements on this subject. (Tr. 174, 175).
Rosen took the defendant into the Port Authority Police Station where he was placed in a holding cell, his bag was secured and his pockets emptied. (Tr. 39-40).
Due to the anthrax scare, the Hazardous Materials team ("HAZMAT") was notified and they arrived approximately 20 minutes after the defendant was brought in. (Tr. 24). They conducted tests to determine whether the mailbag contained anthrax. The results of the tests were negative for anthrax. (Tr. 47, 48).
Special Agent Nancy McNamara of the FBI testified that she was present in the Port Authority Police Station when the defendant was brought in, and waited outside the office while the HAZMAT team did its work. (Tr. 65, 69). Postal Inspectors John Heslin and Raymond Lee arrived at the Port Authority bus terminal while the HAZMAT team was conducting its tests. (Tr. 88). While the officers waited for the HAZMAT team to finish its testing, Ms. McNamara was told by Inspector Lee of the Postal Inspection Service, that there had been recent incidents where people had deposited a large number of visa applications into mailboxes because the deadline for mailing those applications was approaching. (Tr. 81). Defendant acknowledges that he was carrying "quite a few letters," perhaps as many as 139. (Tr. 172).
After the HAZMAT team reported the negative test results, Inspector Heslin removed the contents of the mailboxes into which Ullah had placed letters. (Tr. 88-89). Ullah was interviewed by two detectives with the FBI/NYPD Joint Terrorism Task Force. (Tr. 66). After the detectives were finished, Special Agent McNamara conducted her own interview of the defendant. (Tr. 66). Both interviews were conducted in English, and Ullah appeared to understand what was being said, and himself spoke in English. (Tr. 66-67). McNamara did not advise the defendant of his Miranda rights at any time during the interview, and she did not recall anyone advising the defendant of his rights. (Tr. 67). There is no effort by the Government to introduce these New York statements into evidence.
The postal inspectors determined that, since he was a postal employee, they wanted to talk to Ullah about several facts; that he was a postal employee, wearing his postal uniform and carrying his postal bag, and that his conduct had so aroused the suspicion of eyewitnesses and the Port Authority Police, they suspected him of terrorist activity. (Tr. 85-86, 88, 91-92). The defendant said it was "ok" to question him at another location. (Tr. 91, 92, 200). Inspectors decided to take the defendant to the Fort Lee Carrier Annex, in Englewood Cliffs, New Jersey, to speak with him because that was the nearest postal facility equipped with a postal inspection office. (Tr. 92-94, 107-108). The handcuffs were removed and the defendant got in the car with Inspectors Heslin and Lee and they rode to Fort Lee, New Jersey. (Tr. 92).
On the way to Fort Lee, Inspector Heslin rode in the back seat with the defendant, as was the policy and procedure. (Tr. 110). Heslin told the defendant that inspectors wanted to discuss the day's events, but that they would not discuss anything until they arrived in New Jersey. (Tr. 93). Inspector Heslin testified that the defendant appeared "less frightened" during the ride to Fort Lee. (Tr. 93). Heslin spoke to the defendant in English and the defendant appeared to understand what he was saying. The defendant also spoke to inspectors in English. (Tr. 93).
Defendant testified that no one threatened him on the way to New Jersey or at the Fort Lee Annex. (Tr. 200-01). While in New Jersey, Ullah signed an advice of rights form, and provided inspectors with a handwritten statement. (Tr. 94-96).
The defendant remained at the Fort Lee Annex for between 30 minutes and an hour. (Tr. 116). After Ullah gave the statement, postal inspectors asked Ullah if he wanted to go to work. (Tr. 100). He told them that he wanted to go home. The inspectors asked Ullah whether he needed money to get home and they dropped Ullah off at a bus stop. (Tr. 114).
Ullah testified that he was read the Miranda advice of rights form, signed it, and after signing it, gave a written statement. (Tr. 200-01; Gov. Ex. 4; Ullah Aff. ¶ 11). Ullah first testified that when postal inspectors asked him to go to New Jersey, he told them, "ok," (Tr. 200), as Inspector Heslin had said, (Tr. 92), but his testimony on this subject changed. (Tr. 203). Ullah also testified that when he spoke to the postal inspectors at the Port Authority, he told them that he "wanted to get out of that place. . . . at that time I requested them to please take me out of this place." (Tr. 206).
Legal Analysis
I. The Arrest and Search
The evidence presented at the hearing demonstrated that Officer Rosen had reasonable suspicion to approach and question Ullah. Had he not done so, he would have been grossly negligent and irresponsible. In light of the fact that Ullah was suspected of placing anthrax into mailboxes, the detention of Ullah inside the Port Authority Police Station was reasonable. This was October 2001, the height of the anthrax scare. The search of Ullah's bag was reasonable and necessary.
The facts presented at the hearing show that the reasonable suspicion justifying the initial approach of Ullah developed into probable cause to arrest him for engaging in terrorist activity and/or impersonating a mail carrier. The subsequent search of Ullah's mailbag was incident to a lawful arrest.
"A police officer may, in appropriate circumstances and in an appropriate manner, stop a person for purposes of investigating possibly criminal behavior, even though there is no probable cause to make an arrest." United States v. Bold, 19 F.3d 99, 102 (2d Cir. 1994). The officer here relied upon "specific articulable facts which, taken together with rational inferences from those facts," that reasonably warranted suspicion that Ullah was involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975); see also United States v. Jaramillo, 25 F.3d 1146, 1150 (2d Cir. 1994) (law enforcement officer may conduct a Terry stop so long as the circumstances "would warrant a man of reasonable caution in the belief that a brief investigative stop is appropriate").
The evidence at the hearing showed that there was reasonable suspicion to stop and detain Ullah for suspected anthrax-related terrorist activity and, alternately, for impersonating a federal employee.
In the time before this incident, anthrax-tainted letters were passing through the mails and this was widely reported in the media. (Tr. 3-4). Law enforcement had the responsibility of ensuring the public safety in wake of this threat. The anthrax situation was a reality in New York on October 24, 2001, and these incidents must be viewed in that context.
The evidence presented at the hearing showed that there was reasonable suspicion to stop and detain Ullah for suspected anthrax-related terrorist activity. Defendant's furtive actions while riding a bus from the Bronx to Manhattan aroused the suspicion of several uninterested passengers and they followed him off the bus. His activity was suspicious, not only because of his nervous demeanor at the time, but also because (1) the U.S. mails were being used to send anthrax; (2) mail carriers do not normally drop scores of letters into mailboxes, they collect them; and (3) people do not normally walk from mailbox to mailbox dropping letters in each one. It is easier to mail them all in one box.
A warrantless arrest is justified if there is "probable cause when the defendant is put under arrest to believe that an offense has been or is being committed." United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987). Probable cause 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. Patrick, 899 F.2d 169, 171 (2d Cir. 1990).
Probable cause is a "commonsense, nontechnical" concept that is determined by "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Ornelas v. United States, 517 U.S. 690, 695 (1996) (quotation omitted); accord Brinegar v. United States, 338 U.S. 160, 175 (1949). The Supreme Court explained in Illinois v. Gates, 462 U.S. 213 (1983).
The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.Id. at 231-32 (quotation omitted). As a result, "it is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Id. at 235 (quotation omitted).
Probable cause is to be determined from the totality of the circumstances. Gates, 462 U.S. at 238.
Evidence of a suspect's evasive conduct can contribute to a finding of probable cause. See Cruz, 834 F.2d at 51 ("a suspect's actions that suggest a `consciousness of wrongdoing' can contribute to a finding of probable cause.") "`[D]eliberately furtive actions and flight at the approach of strangers or law officers . . . are proper factors to be considered in the decision to make an arrest.'" United States v. Young, 750 F.2d 220, 222 (2d Cir. 1984) (quoting Sibron v. New York, 392 U.S. 40, 66-67 (1968)). A law enforcement officer "may draw inferences based on his own experience in deciding whether probable cause exists." Ornelas, 517 U.S. at 700. Ullah's conduct was evasive and furtive.
The evidence at the hearing shows that Officer Rosen had probable cause to arrest Ullah for at least two offenses: placing anthrax-tainted letters in the mail, in violation of Title 18, United States Code, Section 2332a, and/or impersonating a mail carrier, in violation of Title 18, United States Code, Section 912. Officer Rosen was aware that the U.S. mails were being used to conduct anthrax attacks, including recent attacks in New York. (Tr. 3-5, 7). Officer Rosen, at roll call, had been specifically alerted to the threat. (Tr. 7).
Ullah's conduct was inconsistent with the behavior of a real postal worker going about his duties. They were consistent with a person dressed as a mail carrier performing actions that he wished not to be detected and perhaps with false identification. The facts at the hearing further demonstrate that Officer Rosen had probable cause to arrest Ullah for impersonating a mail carrier.
Ullah's arrest being lawful, under the "incident to lawful arrest" exception to the warrant requirement for searches, the subsequent search of Ullah's mailbag was also lawful. United States v. Perea, 986 F.2d 633, 643 (2d Cir. 1993). An officer's general need to disarm a suspect or preserve evidence justifies such a search. United States v. Robinson, 414 U.S. 218, 235 (1973).
Based on the objectively reasonable belief that there was probable cause that the defendant was carrying envelopes with anthrax in his mailbag, the warrantless search of the mailbag was justified by exigent circumstances. Exigent circumstances exist when there is probable cause for a search and the safety of law enforcement officers or the public in general is threatened. United States v. Webb, 83 F.3d 913, 916 (7th Cir. 1996) (warrantless searches allowed when exigent circumstances exist which require immediate action by the police and the police do not have time to secure a warrant).
There was probable cause to believe that the defendant was engaging in terrorist activities or impersonating a postal employee or both, and that the mailbag he was carrying contained a dangerous substance. It was reasonable for the authorities to believe that their own safety, as well as that of the public, would have been compromised absent immediate action. If this case does not present exigent circumstances, there is none that will.
II. The Statement to Authorities in New Jersey
The Government does not seek to offer statements made by defendant while detained at the Port Authority Police Station in New York. Only the admissibility of the statements made to postal inspectors in New Jersey are at issue.
Even if the initial detention and/or arrest of the defendant was unlawful, subsequent statements made to New Jersey postal inspectors were sufficiently attenuated to purge the taint of any arguable illegality. In Brown v. Illinois, 422 U.S. 590, 603 (1975), the Supreme Court set forth three factors to consider in determining whether the causal chain has been sufficiently attenuated: (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the "purpose and flagrancy of the official misconduct."
Three hours had elapsed between the defendant's proper initial detention at the Port Authority and the statement given in New Jersey. The defendant had been advised of and waived his Miranda rights prior to making the New Jersey statement. The causal connection between the events at the Port Authority in New York had been sufficiently severed by the fact that the defendant was no longer under arrest, no longer in handcuffs, no longer in a cell, no longer in the custody of FBI agents, no longer in the custody of the Port Authority Police, and no longer suspected of terrorist activity.
The defendant was voluntarily transported from New York to New Jersey. There is no evidence that any of the law enforcement officers involved in the defendant's initial arrest or subsequent questioning in New Jersey acted in bad faith. None of the officers involved in the New Jersey questioning had participated in the New York detention or questioning.
To the extent that defendant argues that the New Jersey statements should be suppressed as "fruit of the poisonous tree" because the initial statements given at the New York Port Authority were taken without Miranda warnings, the argument fails. Wong Sun v. United States, 371 U.S. 471 (1963), does not apply. A second confession by a defendant after a Miranda warning and waiver, is not subject to suppression just because the previous statement was obtained without Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 318 (1985).
The statements made by the defendant at the New York Port Authority were voluntary, albeit without a warning. A confession is "involuntary" within the meaning of the Fifth Amendment if it is obtained by "`techniques and methods offensive to due process or under circumstances in which the suspect clearly had no opportunity to exercise `a free and unconstrained will.'" Elstad, 470 U.S. at 304 (quoting Haynes v. Washington, 373 U.S. 503, 514, 515 (1963)). Thus, "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary.'" Colorado v. Connelly, 479 U.S. 157, 166-67 (1986). There is no suggestion that the New York statements were the result of force or coercion. Nothing law enforcement did in this case was coercive.
Postal Inspector John Heslin did not consider defendant to be under arrest at the time he was transported to New Jersey for questioning. (Tr. 112). Indeed, after the New Jersey questioning ended, he was released, (Tr. 114), and continued to work at the New Jersey Post Office until he was ultimately arrested on April 11, 2002. (Tr. 117, 120). The defendant testified he told inspectors that it was "ok" to take him to New Jersey. (Tr. 200-01). Inspector Heslin also testified that Ullah told him it was "ok" to question him at another location. (Tr. 90). When Ullah was transported to the Fort Lee Annex, he was no longer handcuffed. (Tr. 92). Upon his arrival at the Fort Lee Annex, Ullah was advised of his Miranda rights and signed a written waiver form. (Tr. 200-01; Gov. Ex. 4; Ullah Aff. ¶ 11). He gave the Postal Inspectors a handwritten statement. The defendant was taken to a bus stop in New Jersey after he made his statement. He was asked by postal inspectors if he had money to get home. (Tr. 114). Ullah was at the New Jersey postal facility where he made his statement for no more than an hour. (Tr. 116).
There is no evidence that anything Mr. Ullah ever said or wrote was coerced, or a product of anything but his free will. There is no suggestion that defendant was forced into signing the waiver, or compelled to make any statements. At no time did he tell the postal inspectors that he did not wish to accompany them to New Jersey, or to make a statement. (Tr. 206).
The defendant understood what the Postal Inspectors were saying to him at the time of his statement. Both Special Agent Nancy McNamara and Postal Inspector John Heslin testified that they addressed the defendant in English and that the defendant appeared to understand what they said to him, and spoke to inspectors in English. (Tr. 66-67, 93). The defendant is a college graduate and has been in the United States for five years. He studied English in Bangladesh for "about 8, 10 years." (Tr. 179-180).
I find that the evidence shows that Mr. Ullah voluntarily accompanied the postal inspectors to New Jersey. The evidence is that the statement sought to be suppressed was made voluntarily, freely and willingly, after a knowing and voluntary waiver of his Miranda rights.
The defendant's motion to suppress physical evidence and the controverted New Jersey statement is in all respects denied.