The opinion of the court was delivered by: Korman, District Judge.
CORRECTED MEMORANDUM AND ORDER
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
[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."
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
Q: Was it for safety and ...