Opinion
No. 04-CR-6106.
February 10, 2005
REPORT AND RECOMMENDATION
Preliminary Statement
Currently before the Court are motions by defendant to suppress evidence and statements and to dismiss the indictment. (Docket #13, 20). The Government has filed papers in opposition to these motions. (Docket #17, 21). A suppression hearing was held on November 15, 2004 and January 10, 2005. By Order of Judge David G. Larimer, dated February 4, 2005, all pre-trial motions have been referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Docket #29). The following is my Report and Recommendation as to defendant's motions.
Citations to the transcript of the suppression hearing (Docket # 27) shall be prefaced by "T."
Factual Background
The testimony adduced at the suppression hearing revealed that on January 26, 2004, Parole Officer John Walters received an anonymous phone call regarding defendant Figueroa, a parolee under his supervision. (T. 11-12). The male caller told Officer Walters that he was a neighbor of defendant's and that during the preceding weekend, defendant had been drinking, using drugs, and "had fired a weapon at the residence." (T. 12; 21-22). Later that day, Officer Walters met with defendant in his office for a previously scheduled parole check. Walters did not discuss the anonymous call with defendant at that time. (T. 14, 25). Instead, Officer Walters requested approval from his supervisor to conduct an unannounced home search of Figueroa's Jay Street residence. Upon receiving approval from his supervisor, Walters and fellow Parole Officer John Jenkins drove to the defendant's residence. After knocking, the two officers waited "three to five" minutes before Figueroa answered the door. (T. 12-14). When the defendant opened the door, he was immediately handcuffed for officer safety purposes. (T. 14-15, 27, 69, 72).
However, Officer Walters did administer a urine test during the visit, which came back negative for the presence of drugs. (T. 23).
Walters testified that after securing the defendant, they advised Figueroa that they had received information that there might be a firearm present in the house and they asked the defendant for permission to search his residence. (T. 15). Officer Walters testified that Figueroa gave verbal consent to the search his home. (T. 15). The government also introduced at the hearing a parole "Condition of Release" form that Figueroa had signed at the time of his initial parole. In signing the form, Figueroa represented that he would "permit the inspection of [his] person, residence and property" by his parole officer. (T. 11; Government's Exhibit 1).
After obtaining consent to search, Walters entered the kitchen where he observed a .22 caliber rifle resting behind the kitchen door. (T.16). At that point, Officer Walters called the Rochester Police Department for back-up. (T. 30). Officer Walters asked Figueroa who the rifle in the kitchen belonged to and Figeuroa responded that it belonged to an individual named "John" and that he had gone with John to purchase the weapon. (T. 16-17, 33-34). It is undisputed that defendant was not free to leave at the time he was questioned by Walters about the rifle and neither Walters nor Jenkins had advised defendant of his Miranda rights before questioning him. (T. 32, 77). During the search, Officer Jenkins waited with the defendant in the living room and observed a .22 caliber shell casing on the floor. (T. 18-19, 29, 69, 74). Although Officer Jenkins did not ask defendant any questions, he testified that Figueroa stated: "My friend John fired the gun on Saturday and I told him to leave immediately." (T. 71).
Later, a technician from the Rochester Police Department located a hole in the living room wall, and identified it as being caused by a .22 caliber bullet. (T. 20, 30).
Shortly thereafter, Rochester Police Officer Stephen Boily arrived at the scene. (T. 38). Upon observing the rifle, Officer Boily called for a police department technician to respond to the scene to take possession of the weapon. (T.40). As Officer Boily transmitted the call over his radio, Figueroa allegedly stated that his fingerprints would be on the rifle, but that he had not fired it. (T. 41). According to Officer Boily, he was standing approximately ten feet from defendant while he made the call, but neither he nor any other officer had posed any questions to Figueroa at that time. (T. 41). Then, as Officer Boily was transporting defendant to the Public Safety Building, Figueroa stated that he had been with the man who purchased the rifle, but he did not know how it "had gotten into his office." (T. 42-43). According to Officer Boily, these statements were not made in response to any questioning by the officers in the vehicle, but were volunteered by the defendant. (T. 44).
Discussion
A. Figueroa's Motions to Suppress Statements : Defendant moves to suppress four statements he allegedly made on January 26, 2004, along with the ammunition that was found in his residence.
1. Defendant's First Statement: Defendant argues that his first statement to Officer Walters, that the rifle belonged to someone named "John" and that he had gone with John to purchase it, was made as a result of a custodial interrogation and without benefit of Miranda warnings.
It is well settled that Miranda warnings are required prior to the interrogation of a suspect who is in custody. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Here, it is undisputed that Figueroa was handcuffed and "not free to leave" at the time Officer Walters asked him about the rifle. This clearly constituted a custodial interrogation that required Miranda warnings. See United States v. Newton, 369 F.3d 659, 677 (2d Cir.) (once defendant was handcuffed, he was considered in custody for purposes of Miranda), cert. denied, ___ U.S. ___, 125 S.Ct. 371 (2004).
As the government conceded at the conclusion of the hearing (T. 80), it may not rely on the public safety exception to Miranda because the rifle had already been located at the time Officer Walters asked defendant about it. See Newton, 369 F.3d at 679 (once the weapon was recovered, any further questions regarding it required Miranda warnings). Therefore, defendant's statement that the rifle belonged to "John," whom he was with at the time of purchase, is inadmissible since Officer Walter's questioning was not preceded by Miranda warnings and no exception to theMiranda rule is applicable under the facts presented.
2. Defendant's Second, Third and Fourth Statements: Figueroa also contends that his second, third, and fourth statements should be inadmissible because they were provoked by conduct of law enforcement officials which amounted to a custodial interrogation and therefore violated the Miranda rule. The government argues that these statements were made spontaneously and without prompting by law enforcement. The three statements at issue are: (1) defendant's comment to Officer Boily that his fingerprints would be on the rifle, but that he did not fire it; (2) defendant's statement to Officer Jenkins that "[m]y friend John fired the gun on Saturday and I told him to leave immediately;" and (3) defendant's statement to Officer Boily that he had been with the man who purchased the rifle, but he did not know how it had gotten into his office.
The test for determining whether the conduct of law enforcement agents amounted to "interrogation" is whether the words or actions of law enforcement agents "were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 302 (1980). Thus, the term "interrogation" includes both express questioning or its functional equivalent and includes any "practice that the police should know is reasonably likely to evoke an incriminating response from a suspect." Id. at 300-302. In making this assessment, the Court must consider "the totality of the circumstances of the agents' conduct."United States v. Cota, 953 F.2d 753, 758 (2d Cir. 1992). However, "Miranda does not protect an accused from a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers." United States v. Hayes, 120 F.3d 739, 744 (8th Cir. 1997) (internal quotations and citations omitted).
With regard to these three statements of defendant, I find that they were made spontaneously, and not in response to any questioning or conduct by law enforcement that would be reasonably likely to elicit an incriminating response. While the defendant may have felt the discovery of the firearm during the parole search deserved an explanation to his parole officers, the choice to offer an explanation was his and was not the product of interrogation or its functional equivalent. Accordingly, the spontaneous statements should be admissible. Innis, 446 U.S. at 300 (volunteered statements are admissible in evidence and are not subject to Miranda safeguards); United States v. Gelzer, 50 F.3d 1133, 1138 (2d Cir. 1995) (statements defendant volunteered while being transported in police car were not the product of interrogation and were admissible).
3. Ammunition Seized from the Residence: It is well settled that unless a carefully defined exception clearly applies, a warrantless search is "per se unreasonable." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) citing Katz v. United States, 389 U.S. 347, 357 (1967). One recognized exception to the warrant requirement is a search that is conducted pursuant to consent. Schneckloth, 412 U.S. at 219. "So long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search." United states v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). The prosecution bears the burden of proving that consent was voluntarily given. Schneckloth, 412 U.S. at 222. In determining whether or not consent to a search was freely given, the Court must look at the totality of the circumstances surrounding the obtaining of the consent. Id. at 227. While the government's burden is not satisfied by showing a mere submission to a claim of lawful authority, Florida v. Royer, 460 U.S. 491, 497 (1983), consent need not be expressed in a particular form but can be found from an individual's words, actions or conduct.United States v. Duetsch, 987 F.2d 878, 883 (2d Cir. 1993) (internal quotations and citations omitted).
Applying these legal principles to the facts adduced at the hearing, I am satisfied that the search of defendant's residence was based on defendant's voluntary consent. I credit Officer Walter's testimony that the defendant gave the parole officers verbal permission to search his home. The fact that defendant was handcuffed when he gave his consent does not automatically render the consent involuntary. See United States v. Crespo, 834 F.2d 267, 271 (2d. Cir. 1987) (that defendant was "under arrest and in custody, or even handcuffed" does not necessitate finding that consent to search was coerced), cert. denied, 485 U.S. 1007 (1988).
Alternatively, even if the voluntariness of Figueroa's consent was somehow tainted by the fact that he was handcuffed, I find that the defendant had previously consented to have his residence searched when he signed the parole conditions of release. It is well settled that "persons on supervised release who sign such documents manifest an awareness that supervision can include intrusions into their residence and, thus, have a severely diminished expectation of privacy." Newton, 369 F.3d at 665 (internal quotations and citations omitted). Such warrantless parole searches are deemed reasonable if the parolee gave consent as a condition of his release and the conduct of the parole officer is rationally and reasonably related to his duty to investigate parole violations so as to protect the public from the commission of further crimes. Id. at 666.
Here, Officer Walters' search of defendant's home was reasonably related to his duties as Figueroa's parole officer. Walters had received specific information that Figueroa was in possession of and had fired a rifle at his residence. It was certainly within the scope of Walter's duty to investigate a potential violation of parole and prevent any future violations by defendant. Newton, 369 F.3d at 666 (once parole officer had information that defendant possessed a gun at his residence and used it to threaten others, officer was entitled to search defendant's apartment). For these reasons, I find that the search of defendant's home was reasonable and the ammunition found should not be suppressed.
B. Figueroa's Motion to Dismiss the Indictment: Figueroa also moves to dismiss the indictment based on an alleged violation of the Interstate Agreement on Detainers Act ("IAD").See 18 U.S.C. App. 2, § 2, art. IV(e). The IAD was enacted to require the prompt resolution of outstanding charges against a sentenced prisoner to minimize interruptions in his ongoing prison term while he responds to pending charges in another jurisdiction. Alabama v. Bozeman, 533 U.S. 146, 148 (2001). The "anti-shuttling" section of the IAD provides that if a prisoner against whom a detainer is pending is sent to another jurisdiction, he may not be returned to the original jurisdiction until the new charges are resolved. If the prisoner is sent back while the new charges are still pending, the new charges must be dismissed with prejudice. Id. at 148-49. However, it is well settled that the IAD does not apply to pretrial detainees; it only applies to sentenced prisoners. United States v. Collins, 863 F. Supp. 102, 105 (E.D.N.Y. 1994); United States v. Currier, 836 F.2d 11, 16 (1st Cir. 1987).
Here, the IAD is inapplicable because defendant did not become a sentenced prisoner until August 18, 2004, when his parole was revoked. Defendant's appearances in federal court occurred prior to the revocation of his parole, when he was still a pre-trial detainee, who was not entitled to the benefits of the IAD. See United States v. Paige, 332 F. Supp. 2d 467, 473 (D.R.I. 2004) ("[i]t is well established that a defendant who is detained pending parole revocation is not a prisoner serving a `sentence of imprisonment' within the meaning of the IAD"); United States v. Collins, 863 F. Supp. at 106 (defendant not covered by the IAD until his parole was revoked); United States v. Roy, 771 F.2d 54, 56-58 (2d Cir. 1985) (once defendant's parole had been revoked, he was serving the remainder of sentence, and was entitled to protections of the IAD), cert. denied, 475 U.S. 1110 (1986). Therefore, it is my Report and Recommendation that Figueroa's motion to dismiss the indictment based on a violation of the anti-shuttling provisions of the IAD be denied.
The fact that Figueroa had a preliminary parole revocation hearing in which "probable cause" of a parole violation was found does not alter the fact that his parole was not officially revoked until his final revocation hearing on August 18, 2004.
Conclusion
For the foregoing reasons, it is my Report and Recommendation that defendant's motions to suppress and to dismiss the indictment be denied.
SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
Counsel is advised that a new period of excludable time pursuant to 18 U.S.C. § 3161 (h) (1) (f) commences with the filing of this Report and Recommendation. Such period of excludable delay lasts only until objections to this Report and Recommendation are filed or until the ten days allowed for filing objections has elapsed. United States v. Andress, 943 F.2d 622 (6th Cir. 1991); United States v. Long, 900 F.2d 1270 (8th Cir. 1990).
The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See e.g., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Government and the Defendant.
SO ORDERED.