Opinion
01 Cr. 1115 (JFK)
November 18, 2002
JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, New York; for the United States of America. Of Counsel: Miriam E. Rocah Assistant United States Attorney
Gregory Cooper, Esq., New York, New York; for Samuel Tavares
Roger L. Stavis, Esq., STAVIS KORNFELD, LLP, New York, New York; for Wilson Tavares
OPINION AND ORDER
Background
Defendants Samuel Tavares and Wilson Tavares move to suppress evidence asserting that (1) their arrests were without probable cause and (2) the search of Samuel Tavares' apartment was illegal. They also seek to suppress statements made by them. An extensive evidentiary hearing was held on July 25, 26, and September 18, 2002.
Facts The Court concludes that the facts are as follows: October 22, 2001
On October 22, 2001, an undercover agent ("UC") met with Samuel Tavares at a Burger King on Northern Boulevard and 223 Street in Queens, New York. The meeting was witnessed by law enforcement officials known as the "El Dorado Task Force." (Tr. 5-7). Tavares came in a green Chevrolet Lumina, rented from Talron Enterprises in the name of Samuel Tavares at 1686 Seward Avenue in the Bronx, New York. Two other people came to the scene in a white Acura, registered to David C. Reyes at 686 Neired Avenue, Bronx, New York. One of those two was Wilson Tavares. (Tr. 10-16).
"Tr." refers to the transcript of the Hearing held on July 25-26, 2002. "9/18 Tr." refers to the transcript of the continuation of that Hearing held on September 18, 2002.
At this meeting, Samuel Tavares gave the UC a bag containing approximately $300,000, so that the UC could send the money to Colombia. (Tr. 5, 7-9). Samuel Tavares told the UC to contact the UC's "people" to see if the UC would be able to handle more money to send to Colombia for Tavares. The UC agreed to be in touch. (Tr. 9). Another meeting was arranged over the telephone for October 25, 2001 at 21 Street and Hoyt Avenue in Queens. (Tr. 18).
October 25, 2001
Before 5:00 P.M. at the place set for the October 25 meeting, the October 22 UC again was present, as well as a second UC, and other members of the El Dorado Task Force conducting surveillance. (Tr. 19, 20, 33; 9/18 Tr. 4-7). Agents witnessed three vehicles, a while Lincoln livery, a black Honda and a green Taurus, "caravan" together to the meeting area. The three cars were conducting counter-surveillance. (Tr. 24, 25, 33, 34; 9/18 Tr. 7-9, 13). The agents saw the driver of the black Honda, who was Samuel Tavares, get out of his vehicle and speak with the occupants of the white Lincoln and the green Taurus before and right after a discussion with the UC. (Tr. 26-28; 9/18 Tr. 9-11). The passenger of the green Taurus was Wilson Tavares, and the driver was David Reyes. (Tr. 44, 47; 9/18 Tr. 80-82). While the UC was with Samuel Tavares, the UC gave a signal to the other agents that Samuel Tavares had the money with him. (Tr. 32; 9/18 Tr. 10). Samuel Tavares opened the trunk of the black Honda and took out a large black bag, which he put on the ground. It had the money to be given to the UC. (Tr. 31-32).
Samuel Tavares was then stopped by Agent Keith Krayewski. (Tr. 35). Krayewski identified himself as a police officer, asked Samuel Tavares to step away from the vehicle and to put his hands up. Agent Krayewski had his firearm drawn until Samuel Tavares followed his instructions. Krayewski then holstered his gun, (Tr. 35-36), and questioned Samuel Tavares as to his identity, (Tr. 39), what he was doing and who he was with. (Tr. 38). Samuel Tavares denied ownership of the black bag containing what was later determined to be $500,260, and gave permission for Agent Krayewski to look inside the bag. (Tr. 38-39). Samuel denied knowledge of the money inside the bag. (Tr. 39). Samuel also gave consent for Agent Krayewski to search the inside of the black Honda, which was registered to Alejandro Abreu, who Samuel Tavares claimed was his brother-in-law, but for whom he could not provide any contact information. (Tr. 40) This activity took approximately five to ten minutes. (Tr. 41).
Sergeant Howard Hull of the New York City Police Department, another member of the El Dorado Task Force, stopped the green Ford Taurus as it was very slowly driving away from the meet area. (Tr. 41; 9/18 Tr. 11-12). Sergeant Hull was alone as he cut off the green Ford, in an area where there were youngsters and civilians on foot and in vehicles. (9/18 Tr. 14-15). Hull identified himself as a police officer and, with gun drawn, repeatedly asked the two occupants to get out of their car. (Tr. 42-43; 9/18 Tr. 14-15). When they did not comply, Hull approached the driver's side and instructed Reyes and Wilson Tavares to get out of the vehicle and lay down on the ground. Eventually, both Reyes and Wilson Tavares complied and lay down on the ground. (Tr. 43-44; 9/18 Tr. 15, 16). Hull handcuffed both Reyes and Wilson Tavares and separated them, putting Wilson Tavares into his van, and Reyes into another law enforcement vehicle. (Tr. 44; 9/18 Tr. 17). Other members of the Task Force performed a "ruse" arrest of the two UC agents, in an attempt to protect their identity. (9/18 Tr. 12, 16). The time from when Sergeant Hull stopped the green Taurus, until Wilson and Reyes were placed in separate vehicles, was three or four minutes. (Tr. 44; 9/18 Tr. 17).
Agent Philip Cousin, another member of the El Dorado Task Force who had arrived at the 21 Street and Hoyt Avenue area, approached Wilson Tavares in the van. (9/18 Tr. 80-81). By this time, Wilson was no longer handcuffed. (Tr. 32; 9/18 Tr. 83-84, 106). Cousin asked Wilson Tavares for pedigree information, such as his name and date of birth. (9/18 Tr. 85-86). Wilson claimed that he had no identification on him, (Tr. 45, 86), that he was 16 years old, (9/19 Tr. 45, 86), and that his name was Jose Abreu, (9/18 Tr. 85). Agent Cousin also asked Wilson whether he knew the other people at the scene, i.e., Reyes and Samuel. Wilson said he and Reyes were just in the area to go to a restaurant, but that he did not know the person in the black Honda, Samuel Tavares. (Tr. 45; 9/18 Tr. 86-87, 109). Wilson Tavares did not receive Miranda warnings before this questioning.
Wilson was questioned about the money and apparently said he did not know anything about it. The exchange between Agent Cousin and Wilson was brief. (9/18 Tr. 109). Agent Krayewski also asked Wilson what he was doing in the area, and whether he was with Samuel Tavares. (Tr. 46). Wilson said that he did not know Samuel Tavares (who is his brother) and that he was in the area to go to a restaurant with David Reyes. (9/18 Tr. 87, 109).
Both Wilson Tavares and Samuel Tavares were then handcuffed and driven in separate vehicles to the offices of the Internal Revenue Services ("IRS") at 290 Broadway in Manhattan. (Tr. 52; 9/18 Tr. 19-20).
290 Broadway And The Bronx Activity And Search
At the IRS Offices at 290 Broadway, Wilson Tavares was questioned three different times.
The first questioning was at approximately 6:40 P.M. Agents Cousin, Walter Rivera and Krayewski tried to get pedigree information from Wilson and information as to his guardian since Wilson claimed he was 16 years old. (Tr. 53-55, 180, 181; 9/18 Tr. 88). The agents believed that Wilson was a minor who they did not intend to prosecute. On the advice of an Assistant U.S. Attorney from the Eastern District of New York, they did not advise Wilson of his Miranda rights at this time. (Tr. 53, 180-82).
The second questioning was at about midnight. Agents Krayewski and Rivera questioned Wilson Tavares again in an attempt to verify his identity. (Tr. 55-57, 182-83). They asked him for the names of relatives who could verify who he was and to whom they could release him. Wilson provided some names. Rivera contacted a woman at a number provided and she said no one by the name of Jose Abreu lived there. Then, Wilson said his name was Wilson Cruz. (Tr. 56-57; 9/18 Tr. 184-185).
Eventually, during this interview, the agents learned that Wilson Tavares was in fact over 18 years' old, and that Samuel Tavares was his brother. (Tr. 56-57, 185, 187). The agents then read Wilson Tavares hisMiranda rights in Spanish, which he said that he understood and agreed to waive. (Tr. 57-58, 187-88). The waiver form was mistakenly dated 12:50 P.M., instead of 12:50 A.M. on October 26, 2002. 12:50 A.M. was the correct time. (Tr. 189). After waiving his rights during the second interview and during a third interview at approximately 9:25 A.M. on October 26, 2002, Wilson admitted, amongst other things, that his correct name was Wilson Tavares, that his brother was Samuel Tavares. Wilson continued to claim that he knew nothing about the money in Samuel's possession or the narcotics that were eventually found in Samuel Tavares' apartment. (Tr. 58-61, 190, 266).
Samuel Tavares was also questioned at the IRS Offices. The first interview, conducted by Agents Krayewski and Rivera, took place at approximately 8:50 P.M. on October 25, 2001. (Tr. 61, 191). During this interview, Samuel was advised of his Miranda rights. He said he understood and agreed to waive the rights orally, but he did not want to sign the waiver of rights form. (Tr. 62, 191-92; 9/18 Tr. 126). Samuel provided an address of 1686 Seward in the Bronx and continued to deny knowledge of the money. (Tr. 63).
Following this interview, a team of agents went to 1686 Seward in an attempt to verify Samuel's address and true identity. (Tr. 63, 65; 9/18 Tr. 20, 90). They were informed by an individual who lived there that Samuel in fact lived at 30 West 190 Street, which was verified by the superintendent of that building, who also identified the apartment in which Samuel lived. (Tr. 63, 66-68; 9/18 Tr. 22-23, 91-93). In addition, the agents used a key, which had been obtained from Samuel Tavares or the black Honda he was driving at the October 25 meeting. (Tr. 84-85; 9/18 Tr. 146). With the key to the apartment door, they tested the lock on the door to verify that it was Samuel Tavares' residence. This was done without anyone actually entering the apartment. (9/18 Tr. 26-27, 94-95). Because an odor of chemicals associated with cocaine production was coming from inside that apartment, (Tr. 69; 9/18 Tr. 24-25), at approximately 4:00 A.M. on October 26, 2001, a narcotics-sniffing "drug dog" was brought to the apartment. The dog alerted positive to the presence of narcotics in the apartment. (Tr. 69; 9/18 Tr. 25-26, 96). The agents saw light, and heard what they believed was a shuffling noise coming from inside the apartment. (9/18 Tr. 25, 98-99). They knocked on the door to the apartment, identified themselves as police, but no one answered. (9/18 Tr. 64-65) The agents told an Assistant U.S. Attorney for the Southern District of New York about the status of the investigation and the apartment over the telephone. Plans were made to obtain a search warrant the following morning. (Tr. 70; 9/18 Tr. 97, 99) The agents were also having discussions with the U.S. Attorney's Office regarding entering the apartment in order to secure whatever evidence was inside. At this point, they believed someone might be in the apartment, (Tr. 194-195), although this turned out not to be the fact. (9/18 Tr. 30)
Agents John Eisert, Cousin, Krayewski and Rivera interviewed Samuel Tavares for a second time at the 290 Broadway Offices at approximately 5:30 A.M. on October 26, 2002. (Tr. 192, 233-34). During this interview, Agent Cousin informed Samuel that they knew the true address where he lived and that the dog had detected narcotics in his apartment. (Tr. 71, 193; 9/18 Tr. 99-100, 130). Samuel then admitted that he had 80-100 kilograms of cocaine in the apartment. (Tr. 71). Samuel also told Agents Rivera and Krayewski that his girlfriend might be in the apartment and that he had told her never to open the door for strangers, (Tr. 71, 194)
The agents again advised Samuel Tavares of his Miranda warnings. Samuel again agreed to waive them orally and this time also in writing. (Tr. 72-75, 195-97). Samuel then made additional statements about the apartment and consented in writing to a search of his apartment. (Tr. 76, 78, 197; 9/18 Tr. 101). Both the consent to search and the waiver of rights forms are dated October 26, 2002 at 5:36 A.M. (GX2; GX4, Tr. 196-97)
"GX" refers to Government Exhibit at the Hearing.
On the early morning of October 26, 2001, after the consent was obtained, agents entered Samuel Tavares' apartment. The agents had been told by the U.S. Attorney's Office that they could enter the apartment to secure any evidence. (Tr. 198; 9/18 Tr. 27-28, 102). The agents entered the apartment with the key. (9/18 Tr. 28). When the agents entered the apartment, while conducting a security sweep, they saw kilograms of cocaine in plain view in an open closet. (9/18 Tr. 28-29, 101). Without obtaining a warrant, the agents were told by the U.S. Attorney's Office that they had authority to conduct a full search based on Samuel Tavares' consent. (9/18 Tr. 103). The agents found approximately 118 kilograms of cocaine and a firearm inside the apartment. (Tr. 79; Complaint ¶ 8).
Legal Analysis And Conclusions
Defendants have moved to suppress statements and evidence seized on October 25 and 26, 2001.
The Court fully recognizes that some of the testimony from the agents at the hearing was remarkable for its lack of precision and clarity. Indeed, Sergeant Hull misidentified Samuel Tavares at the hearing on more than one occasion. (9/18 Tr. 22, 75-77). This, although difficult to understand, has no bearing on the Court's conclusions and rulings which follow.
"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. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). "It is important to note that probable cause requires neither a prima facie showing of criminal activity nor a showing that evidence of crime will, more likely than not, be found."United States v. Zabala, 52 F. Supp.2d 377, 382 (S.D.N.Y. 1999) (citingUnited States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987)).
The evidence at the hearing establishes that there was probable cause for the agents to arrest both defendants on October 25, 2002. Samuel Tavares was identified by Agent Krayewski as the person who had met with the UC at the earlier October 22 meeting and delivered approximately $300,000 in narcotics proceeds to the UC, to have the money laundered. (Tr. 28; 9/18 Tr. 10-11). At the October 25 meeting, Samuel Tavares again met with the UC in order to give the UC a second bag, later determined to contain more than $500,000, with the intention that that money also be laundered.
Wilson Tavares was identified as one of the people who had accompanied Samuel to the October 22 meeting. (Tr. 13-14, 44). The green Ford Taurus, in which Wilson was a passenger at the October 25 meeting, acted in a manner consistent with counter-surveillance at the October 25 meeting. (Tr. 24-25; 33-34; 9/18 Tr. 7-9, 13).
The false statements made by Wilson and Samuel Tavares at the time of the October 25 stop in Queens help to establish probable cause to arrest. See, e.g., United States v. Morales, 788 F.2d 883, 886-87 (1986) (unwarned statement may properly be considered in establishing probable cause to arrest defendant where there was no indication of trickery or coercion by agents)
The actions of the defendants at the October 22 and October 25 meetings, and the obviously evasive and false statements made by the defendants at the time they were stopped on October 25, show that the arrests of Samuel and Wilson Tavares were supported by sufficient probable cause.
On this motion, Samuel Tavares originally moved to suppress the money seized from him on the street at the October 25 Queens meeting. (Cooper Affidavit ¶ 5). Any claim that the money was not properly seized fails because Samuel disclaimed any right of ownership of the bag at the time. (Tr. 38-39).
When Samuel was approached by Agent Krayewski, he said that the bag that he had just taken from the trunk of the black Honda was not his bag. (Tr. 39). "It is well settled that an otherwise legitimate privacy interest may be lost by disclaiming or abandoning property, especially when actions or statements disavow any expectation of privacy." United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991); United States v. Welbeck, 145 F.3d 493, 498 (2d Cir. 1998) ("A warrantless seizure of abandoned property does not offend the Fourth Amendment.")
The arrest of Samuel was supported by probable cause and the motion to suppress the $500,260 is denied. In any event, Mr. Cooper has withdrawn this portion of the motion (p. 1 of Cooper letter submission of November 15, 2002)
Wilson Tavares' Pre-Miranda Statements
In Queens, Wilson Tavares was asked for identifying or pedigree information. He falsely said he had no identification on him, (Tr. 45, 86), that he was 16 years old, (9/18 Tr. 86), and that his name was Jose Abreu, (9/18 Tr. 85). Agent Cousin also asked Wilson a number of other questions on the street in Queens on October 25, 2001.
Wilson was asked by Cousin about his knowledge of the person in the black Honda (Samuel Tavares), about why he was in the area, and whether the money in the bag seized from Samuel was his. The Government is not seeking to admit any of those questions and answers pursuant to the pedigree exception and Mr. Stavis in his November 12, 2002 submission seems to agree that the Government's version of the law is correct.
The Government urges the admission of only:
(1) questions and answers as to Wilson's age, name, address, and identification by Agent Cousin on the street; (2) questions and answers as to the same type of pedigree information by Agents Krayewski and Rivera at the IRS Offices; and (3) questions and answers by Agents Rivera and Krayewski at the IRS Offices as to Wilson's relatives, including Wilson's failure to disclose that Samuel was his brother. This evidence is admissible.
At the IRS Offices, Wilson was again questioned on two more occasions to obtain accurate pedigree information. (Tr. 53, 55-57, 180-83) He again initially gave false information as to his name, age, residence and legal status. Agents Rivera and Krayewski asked Wilson for the names of relatives who could verify his identity. Wilson gave the names off supposed cousins, but did not disclose that Samuel was his brother. (Tr. 54-55, 183-88). During the second interview, the agents learned that Wilson Tavares was in fact over 18 years' old, and that Samuel Tavares was his brother. (Tr. 56-57, 185, 187) Wilson was not given Miranda warnings prior to these interviews because the agents still believed he was a minor whom they would not be prosecuting.
These questions of Wilson Tavares, by Agents Cousin on the street in Queens, and those before he was given Miranda warnings at the IRS Offices, tall within the pedigree exception to Miranda. The questioning was of a limited nature, designed to establish Wilson's true age and identity. This is not custodial questioning. See United States v. Carmona, 873 F.2d 569, 572-73 (2d Cir. 1989). To permit a defendant to suppress the truth by his own prevarications would turn Miranda into a dangerous sword to be wielded unfairly by the guilty. It would make the law a foolish mockery of common sense.
Pedigree questions are "ordinarily innocent of any investigative purpose" and, "do not pose the dangers Miranda was designed to check; they are rather the sort of questions `normally attendant to arrest and custody.'" United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986) (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Simply because a defendant gives false information in response to pedigree questions, and therefore renders the information incriminating, does not mean that Miranda warnings were required. In determining whether the challenged information "falls within the benign category of `basic identifying data required for booking and arraignment,'" Gotchis, 803 F.2d at 79 (quotingUnited States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112 (2d Cir. 1975)), a court should consider whether the inquiry was "innocent of any investigative purposes. . . ." Carmona, 873 F.2d at 573 (quotingGotchis, 803 F.2d at 79.
The enumerated questions asked by Agent Cousin on the street, and subsequently by Agents Rivera and Krayewski at the IRS Offices, as to Wilson's name, age, address, and alien status, as well as his false answers to these questions, fall within this exception to the Miranda rule. See Carmona, 873 F.2d at 573 ("An arresting officer cannot assume that when he asks a suspect for his name he will be given a false answer.").
The questions by the agents at the IRS Offices regarding Wilson's relatives are admissible. The agents asked Wilson "if he had any relatives," (Tr. 54), who could verify his identity and take custody of him. As shown on the pedigree sheet filled out at the time, (GX6), Wilson did not inform the agents that Samuel Tavares was his brother. (Tr. 54-55, 183-88). The agents had no way of knowing that one of the other people at the Burger King on October 22 and Hoyt Avenue on October 25 was in fact a relative or that Wilson would withhold that information from the agents.
To the degree that Wilson Tavares seeks to suppress the questions and Wilson's false answers regarding his identity, and denial of his relationship to his brother at the IRS Offices, the motion is denied. Any other result would be absurd.
Samuel Tavares' Statements At Hoyt Avenue In Queens On October 25, 2002
A police officer may "detain a person temporarily for the purpose of interrogating him if the officer reasonably suspects that the detainee has committed or is about to commit a crime." So long as questioning is "moderate" and directed at "confirming or dispelling the officer's suspicions," an officer performing an investigative detention need not administer Miranda warnings to the suspect. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). This is what happened on the street in Queens on October 25 relative to Samuel Tavares.
Agent Krayewski briefly detained and questioned Samuel to evaluate the situation and determine what further investigation was required. Samuel was standing next to an open trunk of an automobile. For justifiable safety reasons, Agent Krayewski drew his firearm until Samuel stepped away from the vehicle. Samuel was not handcuffed at this time. (Tr. 35-37). See, e.g., Oliveira v. Mayer, 23 F.3d 642, 645-46 (2d Cir. 1994) (law enforcement may use a degree of restraint during a Terry stop to neutralize the threat of physical harm without the stop becoming an arrest); United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993) (same). Krayewski asked Samuel questions pertaining to the immediate purpose for the stop: what Samuel's relationship was to the other vehicles, whether Samuel owned the money in the bag, who owned the car, and whether the agents could look inside the car. These questions elicited information that was necessary for Agent Krayewski to determine how to proceed with the investigation, i.e., whether the black Honda could be searched for additional contraband and whether the bag containing the money could be searched and seized, and whether there was probable cause to arrest the occupants of the other vehicle, (Tr. 38-39). Those statements are admissible and are not suppressed even though not preceded by Miranda warnings.
Post Miranda Statements Made By Samuel and Wilson Tavares
I conclude that Samuel Tavares knowingly and voluntarily waived hisMiranda rights on two occasions. He also voluntarily admitted the presence of narcotics in his apartment both before and after the second giving of Miranda warnings.
Once the agents learned Wilson's true age, they gave him Miranda warnings, which I conclude he knowingly and voluntarily waived. Following that waiver, Wilson made incriminating, false-exculpatory statements regarding the money and the narcotics. Both defendants have moved to suppress their statements on grounds that they were not Mirandized, (Cooper Affidavit ¶ 7, Stavis Affidavit ¶ 5) and, implicitly, that any waiver of their Miranda rights was not knowing and involuntary. (Cooper Affidavit ¶¶ 7-8). Both motions are denied.
The fact that the defendants were subjected to some questioning before the reading of their Miranda rights does not render inadmissible the statements made by the defendants after the reading of their Miranda rights. See Oregon v. Elstad, 470 U.S. 298, 303-18 (1985) (holding that a confession made after the proper administration and waiver of Miranda rights is not rendered inadmissible by the fact of a prior confession made without the administration of Miranda rights, so long as the prior confession was in fact voluntary and not the product of actual coercion). That this is the law acknowledged by Mr. Stavis in his November 12, 2002 submission (p. 5).
Samuel Tavares was not under arrest at the time of his brief questioning on the street in Queens and what he said there was clearly voluntary. Wilson Tavares was subjected to only brief, non-confrontational questioning on the street and at the IRS Offices to gather pedigree information. Wilson was handcuffed on the street only as long as necessary to safely separate him from the other defendants, and there was no force used to do so. See Moran v. Burbine, 475 U.S. 412, 421 (1986).
To prove a valid waiver, the Government must show (1) that the relinquishment of the defendant's rights was voluntary; and (2) that the defendant had an awareness of the right being waived and of the consequences of waiving the rights. Moran, 475 U.S. at 421. The totality of the circumstances surrounding the waivers here shows that defendants' waivers were voluntary and knowing.
There is nothing in the record to suggest that the circumstances of defendants' waivers were involuntary or coercive. True, the time of detention was relatively lengthy, but it was no longer than necessary for the agents to determine the true identity of the suspects and properly investigate the case. Much of the delay was necessitated by the defendants' own lies to the agents about who they were and where they lived. Cf. United States v. Collins, 462 F.2d 792, 796 (2d Cir. 1972) (confession was voluntarily given even though detention was very lengthy because delay was no longer than necessary, questioning was sporadic, and nothing in record supported claim of involuntariness). Though the agents did not recall some specifics, they testified that any necessities required or requested by the defendants during their detention would have been provided to them. (Tr. 91, 147-48, 157). The defendants were not handcuffed during the interviews by the agents, (Tr. 91), nor is there evidence that the tone of the questioning was coercive, (Tr. 54).
The fact that the agents suggested to Samuel that his signing of the waiver form would be taken as a sign of cooperation, does not in any way render his waiver involuntary. See, e.g., United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995); United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995); United States v. Bye, 919 F.2d 6, 8-10 (2d Cir. 1990). He had already waived orally. Statements to the effect that it would be to the suspect's benefit to cooperate do not render the waiver involuntary. See United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir. 1974); United States v. Ferrara, 377 F.2d 16, 17-18 (2d Cir. 1967). The agents did not lie to Samuel, see Ruggles, 70 F.3d at 265 ("[m]aterial misrepresentations based on unfulfillable or other improper promises might perhaps overbear a defendant's will"); United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987) (misrepresenting quantity of evidence against defendant may render confession suspect), or falsely tell him that his failure to speak to them would preclude the possibility of a cooperation agreement see United States v. Anderson, 929 F.2d 96. 100 (2d Cir. 1991). Samuel was not misled into believing that he would be getting the benefit of a cooperation agreement, leniency in charging or a break on sentence nor were any promises made to him. (Tr. 247, 268, 69).
Agent Rivera advised Samuel that any information he gave them would be provided to the U.S. Attorney's Office and taken into consideration. (Tr. 247). "Statements such as these are merely common sense factual observations." Ruggles, 70 F.3d at 265; see also Jaswal, 47 F.3d at 542;United States v. Shears, 762 F.2d 397, 402 n. 3 (4th Cir. 1985).
Samuel and Wilson Tavares knowingly and intentionally waived theirMiranda rights and statements made following those waivers are admissible.
Search of Samuel Tavares' Apartment
Samuel Tavares signed a written consent to search his apartment in which the drugs were discovered, prior to the agents' entry into that apartment. Samuel now challenges that consent as the result of improper coercion. I conclude there was nothing improper about it.
"It is well settled that a warrantless search does not violate the Fourth Amendment if "the authorities have obtained the voluntary consent of a person authorized to grant such consent." United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996) (quoting United States v. Elliot, 50 F.3d 180, 185 (2d Cir. 1995).
The Second Circuit has concluded that consent to search may properly be given by someone who has already been placed under arrest when arresting agents are present. United States v. Moreno, 897 F.2d 26, 33 (2d Cir. 1990) ("[a] person placed in official custody is not thereby rendered incapable of giving his free and voluntary consent to a warrantless search").
In United States v. Garcia, 56 F.3d 418 at 423 (2d Cir. 1995), it was noted that
"Nor does the presence of three law enforcement officers lend significant support to a claim of coercion. Consent to search has been found despite formal arrest . . . and such additional aggravating circumstances as handcuffing of a suspect, the presence of six law enforcement officers in his home, and their assurance that they would remain indefinitely and secure a search warrant if consent were withheld."
I conclude that Samuel Tavares' consent to search his apartment was voluntary. He gave written consent to search the apartment after having been twice advised of his Miranda rights. Any assertion that Samuel's will was overborne by the agents because they threatened the arrest of his girlfriend, and refused to let him speak with an attorney after his request, is unsupported by the record. Agent Krayewski testified that Samuel never asked to speak to an attorney, (Tr. 79), and that no one threatened that his girlfriend could be arrested if he did not cooperate with them, (Tr. 120, 121). I accept this testimony as truthful and accurate.
The agents testified that they determined that they could not allow Samuel to call someone who was inside the apartment for fear that she might destroy the evidence, but that once they entered the apartment and secured the evidence, they would allow Samuel and his girlfriend to speak. (Tr. 76, 78, 194). This was reasonable under the circumstances. There is no indication in the record that the agents told Samuel that they would obtain a search warrant if he did not consent.
Finally, the record establishes that the agents entered the apartment after they obtained consent, using a key that had been lawfully obtained at the scene in Queens. Mr. Cooper's November 15, 2002 submission p. 2 notwithstanding. Agent Cousin testified that he had asked Agent Krayewski whether there were any keys obtained from Samuel to bring to the apartment to test in the door. (9/18 Tr. 146-47). Although he could not remember the precise details, Agent Krayewski recalled that the key had been taken either from Samuel Tavares' person in a search incident to his arrest, or from the black Honda, which Samuel gave consent to search at the time of the stop. (Tr. 84-8, 111).
The Government further argues that the doctrines of "Exigent Circumstances" and "Inevitable Discovery" apply in this case. Persuasive arguments are advanced as to each, but they need not be reached because the consent here was properly obtained and the entry to the apartment and subsequent seizure of the narcotics was perfectly legal.
The motions to suppress are denied.