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August 6, 1990


The opinion of the court was delivered by: Korman, District Judge.


After a jury trial, the defendant was convicted of smuggling marijuana into the United States. She now moves for reconsideration of the denial of her pre-trial motion to suppress evidence seized from her apartment. The relief the defendant seeks is compelled by United States v. Sanchez, 635 F.2d 47 (2nd Cir. 1980). In Sanchez, the defendant filed a pre-trial motion to suppress evidence seized from his apartment on the ground that he had not voluntarily consented to the search. The district court discredited the defendant's "deliberately . . . false testimony" that he "said nothing" when asked for permission to search, and credited the federal officer's testimony that the defendant's response to his request had been "`Go ahead and look. You won't find anything.'" Id. at 61. Based on this testimony, and on the defendant's "arrogant and intrepid" attitude at trial, the district court concluded that the defendant "was not intimidated, not threatened, not mislead (sic), and was given no cause to fear brutality or other uncivilized behavior by the officers." Id.

On appeal from the denial of the motion to suppress, the Court of Appeals held that the district court's findings, although not "clearly erroneous," were inadequate because the district court apparently did not consider whether "the circumstances of [the defendant's] detention . . . may have led him to believe that the officers had the right and the intention to search his apartment even if he did not consent." Id. It also held that, since the defendant "did not testify that he [orally consented to the search] because he felt he had no choice[,] . . . it [is] not clear . . . that the circumstances reflected in the present record compel [the] conclusion" that his consent was involuntarily given. Id. Consequently, the Court of Appeals remanded the case for further proceedings consistent with its opinion:

  [T]he finding before us that Sanchez was neither threatened nor
  intimidated does not in light of the circumstances under which
  his alleged consent was obtained, establish that his consent
  was voluntarily given. What is lacking is explicit
  consideration by the trial judge as to whether or not Sanchez,
  believing the officers were going to enter regardless of what
  he said, merely submitted to their authority. We therefore
  remand to the district court for additional findings of fact
  and for reconsideration of whether the prosecution carried its
  burden, in light of the proper standard. If the district court
  finds, in light of "the totality of all the circumstances,"
  that Sanchez voluntarily consented to the search, and not that
  he merely bowed to what he reasonably viewed as the exercise of
  authority, new judgments of conviction should be entered
  against Sanchez and Alvarez. If, on the other hand, such a
  voluntary consent is not found, the motion to suppress the
  items seized in Sanchez's apartment should be granted [and] a
  new trial should be ordered as to Sanchez . . . .


This holding is particularly relevant to the defendant's pending motion for reconsideration of the denial of her pretrial suppression motion. Like the district court in Sanchez, after discrediting the defendant's testimony regarding the circumstances under which her consent to search her apartment was obtained, I did not consider whether these same circumstances could have led her to believe that the officers were going to search regardless of what she said or of her signature on the consent form.

After carefully reviewing the evidence in light of the circumstances that preceded the execution of the consent form, I find that the United States Attorney has not met the burden of proving that the defendant's consent was voluntary. Accordingly, for the reasons that follow, the defendant's post-trial motions for reconsideration of the denial of her suppression motion and for a new trial are granted.*fn1


The facts, as testified to at the suppression hearing and at trial by the Customs Service Agents, may be summarized as follows: The Customs Service obtained a warrant to arrest the defendant for importing approximately two hundred pounds of marijuana into the United States. The marijuana was contained in luggage that the defendant did not retrieve after she had arrived in New York from Jamaica on September 3, 1989.

On September 7, 1989, at 7:00 a.m., approximately half a dozen Customs Service Agents knocked on the door of the apartment that the defendant occupied with her young son and her father. The defendant's son opened the door and the Customs Service Agents, with guns drawn, Tr. 54,*fn2 entered the apartment and conducted a security sweep. While the record is unclear where the agents first encountered the defendant, within minutes after their entry, Special Agent Alexander found the defendant seated in the hallway of the apartment*fn3. The defendant "was slightly agitated, as anyone would be when they had federal agents enter their house with an arrest warrant" at 7:00 a.m. Tr. 8. Special Agent Alexander and Special Agent Matula succeeded in calming the defendant down "so that she would be able to understand her Miranda rights and coherently deal with the situation." Tr. at 8-9.

After the defendant was advised of her Miranda rights, Special Agent Dalessandro "asked [the defendant] if she understood her rights, and whether it was okay to look through her apartment." Tr. 23. The defendant indicated that she understood her Miranda rights and "when asked [if the agents could] look around [her] apartment[,] . . . [s]he said, yes." Id. While this conversation was taking place, the other agents "were scattered through the living room [and] in the hallway." Tr. 24.

At about 7:30 a.m., Special Agent Dalessandro asked the defendant for identification. Trial Tr. 70, 73. The defendant replied that the identification was in her bedroom. According to Special Agent Dalessandro, he "escorted her into her bedroom, and she went between the night table and her bed and started to reach for two handbags, at which time [he] took control of the handbags for safety reasons, and [he] also observed a beeper on her night table, which [he] also took." Tr. 25-26.

After they walked back into the hallway, Special Agent Dalessandro "emptied the contents of the bags on to the floor[,]" Tr. 57, and seized the cash and documentary evidence that comprised the contents. While the bags were being searched and their contents seized, other agents had "walked into the bedroom and picked up identifying [labels from] other pieces of luggage." Tr. 59.

Special Agent Dalessandro has consistently failed to offer a rational explanation for why he felt compelled to empty the bags after he seized them. At the suppression hearing, when asked why he "didn't wait for a consent form before dumping the contents of these bags[,]"*fn4 Special Agent Dalessandro responded, "Yes, safety." Tr. 57. When I asked him "[w]hy was it necessary to open them for safety reasons[,]" Special Agent Dalessandro answered, "There was myself and another agent standing there, and I don't recall who opened what or po[u]red (sic) what out, but we just emptied it out."*fn5 Tr. 70. Then, when asked at trial why he emptied the bags, Special Agent Dalessandro responded, "Because I did." Trial Tr. 83-84. The following colloquy then ensued between the agent and the defendant's attorney:

Q: Was it for safety and ...

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