The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge.
The indictment in this case charges the defendant in three counts with violation of the National Firearms Act Amendments of 1968, 26 U.S.C. § 5801 et seq. (1964), as amended (Supp. V, 1970). Count one charges him with having engaged in business as a dealer in firearms without having paid the special occupational tax required by 26 U.S.C. § 5801 (1964), as amended (Supp. V, 1970), and without having registered as a dealer in firearms as required by 26 U.S.C. § 5802 (1964), as amended (Supp. V, 1970). Count two charges the defendant with having received and possessed a firearm that was not registered to him in the National Firearms Registration and Transfer Record. Count three charges him with having transferred a firearm in violation of 26 U.S.C. §§ 5811, 5812 (1964), as amended (Supp. V, 1970). The case presently is before the court on a motion by the defendant for an order that various firearms seized from defendant's apartment be suppressed as evidence.
On September 9, 1969, Kenneth Coniglio, a Special Investigator with the Alcohol and Tax Division of the United States Treasury Department, Internal Revenue Service, armed with an arrest warrant and accompanied by Donald Zimmerman, his Area Supervisor, and by three Housing Authority police officers, went to the defendant's apartment, there placed him under arrest and seized the firearms which defendant moves to suppress. The Government concedes that the arrest warrant carried by Agent Coniglio was invalid, but it contends that the arrest itself was valid nonetheless because the agents had probable cause to believe that the defendant had committed a felony.
The defendant does not make an issue of the propriety of the arrest. He concedes for purposes of this motion that there was probable cause to make it. He does make an issue of the propriety of the seizure of the firearms in light of the admitted fact that the agents did not have a search warrant.
The testimony reveals that on September 9, 1969, defendant resided with his parents and brother in a five-room apartment in the Bronx. When the agents arrived at the apartment defendant and his father were in a bedroom watching television; defendant's brother admitted the agents into the entrance area of the apartment. Defendant and his father then emerged from the bedroom. Agent Coniglio asked for James Marotta, and when defendant identified himself, the agent told defendant that he had a warrant for his arrest. Defendant then was placed under arrest and was told that he was being arrested in connection with the illegal sale of firearms.
Agents Coniglio and Zimmerman and defendant's parents as well as the defendant testified at the hearing held in connection with this suppression motion. The testimony of these witnesses as to what had occurred in defendant's apartment on September 9, 1969, until the defendant was placed under arrest is fairly well in accord. Their testimony as to the events which immediately followed defendant's arrest, however, is not in accord.
Agent Coniglio testified that after placing defendant under arrest he advised defendant of his constitutional rights by giving him all of the warnings required by the Miranda decision.
Defendant stated that he did not want a lawyer and that he would speak to Agent Coniglio. He admitted having sold a pistol to one Enrique, who, unbeknownst to defendant, had acted as an informant for the Government in the past. Agent Coniglio then asked defendant if he had any guns on the premises and told him "that he should give them to me if he did." According to Agent Coniglio, after defendant indicated that he did have guns, they went into defendant's bedroom where he produced three guns which are the subject of this suppression motion.
Agent Zimmerman's testimony agrees with Agent Coniglio's. Agent Zimmerman did not testify, however, as to what had occurred in defendant's bedroom since he was not present there when defendant turned the guns over to Agent Coniglio.
Defendant's version of these facts differs. He testified that when he first saw Agents Coniglio and Zimmerman they had their guns drawn. The guns were not pointed at anyone nor was the exposure of the guns, which lasted for only about a minute, accompanied by any threats. Defendant further testified that the agents did not warn him of his constitutional rights in his apartment. Rather, after placing him under arrest Agent Coniglio asked defendant where his bedroom was. Defendant indicated the way and Agent Coniglio went into the bedroom with defendant, holding defendant's arm along the way. Once inside the bedroom, Agent Coniglio told defendant that "If you have any other guns on the premises, give them to me before I search and find them and hold your parents responsible." Accordingly, defendant removed a bag from his closet which contained guns. He handed this bag to Agent Coniglio. Agent Coniglio then looked through the drawers of defendant's dresser.
Mr. Dominick Marotta, defendant's father, testified that defendant was not advised of his constitutional rights and that the defendant immediately was asked where his bedroom was. Mr. Marotta testified further that he followed the agent and the defendant into the bedroom. There, he heard the agent ask the defendant if he had any guns, and he also heard the agent tell the defendant that if the agents had to search for guns defendant's parents would be held responsible if any were found. According to Mr. Marotta, defendant's arm was not held while he was going into the bedroom.
Defendant's mother, Mrs. Josephine Marotta, testified that she was in the living room while the agents were in her apartment. According to her testimony the agents told defendant that if he had any guns he should give them to the agents otherwise they would hold her husband and her responsible. Mrs. Marotta testified that her son's arm was not held, and while she stated that her son was not informed that he had a right to a lawyer, she did say that she heard her son informed that anything he said could be used against him in a court of law.
Neither of defendant's parents were asked whether the agents had their guns drawn. Agent Zimmerman was queried about this and he responded that none of the officers in the apartment ever drew their guns there.
The Government contends that the seizure of the guns from defendant's apartment was accomplished upon the consent of the defendant and that the motion to suppress therefore must be denied.
The principles involved in the analysis of whether consent was given are well-established. "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968). The Government must show that the consent was unequivocal and specific and not "the product of duress or coercion, actual or implicit." United States v. Smith, 308 F.2d 657, 663 (2d Cir. 1962) cert. denied 372 U.S. 906, 83 S. Ct. 717, 9 L. Ed. 2d 716 (1963).
The consent must not be illusory. When the alleged consent is considered within the context in which it was given it must prove to be more than an acquiescence or submission to authority or force. E.g., Bumper v. North Carolina, supra ; Waldron v. United States, 95 U.S. App. D.C. 66, 219 F.2d 37 (1955); United States v. Gross, 137 F. Supp. 244 (S.D.N.Y. 1956). Finally and importantly, consent by a defendant to a search or seizure is not to be lightly inferred; the Government's proof must establish such consent by clear and convincing evidence. E.g., United States v. Como, 340 F.2d 891 (2d Cir. 1965); United States v. Lewis, 274 F. Supp. 184 (S.D.N.Y. 1967).
In this case the Government contends that defendant's consent to the seizure of the guns is supported by testimony that defendant indicated to Agent Coniglio that there were guns in the apartment and also that he took guns from a closet in his bedroom and turned them over to Agent Coniglio. The testimony establishes as much. But the testimony concerning all of the events which transpired in defendant's apartment and which give color ...