United States District Court, Eastern District of New York
August 6, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
CAROL LEWIS, DEFENDANT.
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 security reasons?
A: To examine the contents
Q: Isn't [it] a fact, you told this court you [emptied the
bags] for safety and security reasons?
A: For safety and security, she had already given oral consent.
Trial Tr. 84.
The defendant was first presented with a consent to search form
at 9:30 a.m. Tr. 32. By that time, the agents had already
conducted a security sweep of the apartment and had seized
"[the defendant's] beeper, the contents of her two handbags,
two photographs, and . . . some baggage tags that were affixed
to two or three suitcases that were in the apartment." Id.
Special Agent Dalessandro explained that all this took place
prior to the execution of the
consent to search form because the defendant's affirmative
response to his question whether it "was okay to look around
her apartment" constituted "in his mind . . . a knowing and
intelligent waiver," Trial Tr. 77-78, that gave him the right
to search before the consent form arrived and before the
defendant was advised that she could refuse to consent to the
search. Trial Tr. 79.*fn6
After the suppression hearing and prior to trial, I ruled that
the defendant's affirmative response to the request of Special
Agent Dalessandro for permission "to look around" did not
constitute "a consent to search anything." Tr. 4, January 31,
1990. I did not suppress the evidence found in the defendant's
pocketbooks and other evidence seized prior to the signing of
the consent form on the basis of the following findings:
I don't believe that that amounted to a consent to search, but
it is not clear to me that they found anything pursuant to that
As I understand the evidence, and you can correct me if I am
wrong, the first major piece of evidence that was found was
when the agent asked for identification, asked the defendant
whether she had any identification and then she took them to
the bedroom and she reached for those two pocketbooks. Then
he took the pocketbooks . . . I think he said he took them
into the living room and emptied them for security reasons.
Quite frankly, I don't know how security reasons justify
that. I mean, he had physical custody of the pocketbooks. It
is not clear to me how emptying them out, particularly
emptying them out on the floor like that, necessarily
furthered any security concerns that the agent may have had.
On the other hand, [the defendant] subsequently did consent
to the search of the apartment. They read her the consent to
search form. She signed it. I don't believe the [defendant's]
testimony that she was laying on the floor and they made her
sign it on the floor with a gun to her head.
There is no evidence . . . to conclude that she didn't
understand what she was signing . . . there is no evidence
from her . . . because of the way the testimony has come out,
and what I think is simply not an accurate version of what's
happened from her, there is nothing to suggest that that
consent was in any way involuntary or that I should set it
aside on the grounds that it is involuntary.
It seems to me that, again, subject to whatever arguments you
want to make, that one could argue that they would have
inevitably found what was in the pocketbook pursuant to the
consent that was subsequently obtained even if the initial
search of the pocketbook was invalid.
Tr. 4-5, January 31, 1990.
In reaching the conclusion that the consent given at 9:30 a.m.,
when the defendant signed the consent form, was voluntary, and
that the search conducted pursuant to it would have inevitably
led to the discovery of the items that were previously seized
without consent, I did not consider the effect that the prior
illegal conduct may have had on the defendant's decision to
sign the form.*fn7 After giving consideration to the nature
and extent of the search
and seizure that preceded the execution of the consent form,
combined with the armed entry of half a dozen Customs Service
Agents at 7:00 a.m. and the arrest of the defendant, I conclude
that a reasonable person in the defendant's position would not
have felt that her consent to search was material. Stated
another way, I find that the United States Attorney has failed
to demonstrate that the consent to search was not a submission
to the authority to search and seize that the Customs Service
Agents had already exercised to a significant degree. See
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20
L.Ed.2d 797 (1968). Indeed, in light of Special Agent
Dalessandro's trial testimony, that he construed a consent to
look around the apartment as a knowing and intelligent waiver
that gave him the right to search, I am not persuaded that the
Customs Service Agents actually waited until the consent form
was signed at 9:30 a.m. before conducting a full blown search
of the apartment.
The only issue that remains is the claim of harmless error
asserted by the United States Attorney. The evidence seized
from the defendant's pocketbook included some $1,723.00 in cash
and an airline ticket that conclusively established that she
had been the Carol Lewis who was on the flight from Jamaica and
to whom the marijuana-filled luggage belonged. Although the
evidence against the defendant, aside from this contested
evidence, included the luggage filled with marijuana, an
eyewitness identification and a full post-arrest confession,
the Assistant United States Attorneys who were trying the case,
Ms. Wittels and Mr. Lato, initially insisted that the evidence
seized from the defendant's apartment was critical to their
MS. WITTELS: We are only in a position to open on the
THE COURT: That is a terrible weakness that you have to open
MR. LATO: In the mind of the jury they may feel all the things
were done, why isn't there any evidence that she took the
flight independent of the police officer's statement, why
aren't there tickets?
MS. WITTELS: Where is the other suitcase? It was in her
apartment. I think those are reasonable questions the jury may
wonder about. I think it is important to establish she checked
the bags on the flight and she left the bags for someone else
to take off the airplane.
The second suitcase is in her apartment. I think it is key
and not cumulative. Where is the independent evidence she was
actually on this flight?
MR. BREITBART: I understood a Customs inspector is going to
testify that he identified her as the individual that got off
MS. WITTELS: I assume you are going to impeach — I don't think
we have to rely on eyewitness testimony that long ago when we
have documentary evidence. I don['t] thin[k] (sic) Mr.
Breitbart is going to waive cross-examination, he is going to
try to make them think he doesn't remember.
In her summation, the Assistant United States
Attorney again emphasized the importance of the items seized by
Special Agent Dalessandro. She argued to the jury:
You heard from special agent Dalessandro. Special agent
Dalessandro was the case agent on this case. He was basically
responsible for the investigation. He told you what he
recovered from the defendant's own pocketbook only four days
after this flight.
Ladies and gentlemen, that is Government Exhibit 16. And that
is an airline ticket, and the boarding pass on that ticket is
very, very clear. It indicates that C. Lewis boarded flight
011 on September 3, 1989, and she was bound for JFK Airport.
That is exactly what the boarding pass says. Inside you will
also see there are luggage tags in there and we will discuss
those, and also an airline ticket dated September 2nd
What else was found in the defendant's apartment? Two
additional luggage tags from flight 011 on September 3rd with
the name M. Brown. Two other suitcases in the defendant's
apartment from which the agents removed the sticker
indicating that M. Brown, . . . a sister of the defendant,
was also on that flight on September 3rd and she too has two
Summation Tr. 36-37, 44-45.
Under these circumstances, while I believe that there is
sufficient evidence to sustain a conviction without the fruits
of the search of the defendant's apartment, I cannot conclude
on this record that the evidence was harmless beyond a
reasonable doubt. Accordingly, the motions to suppress and for
a new trial are granted.
I wish to make clear that I am now suppressing only the
evidence seized in the defendant's apartment and the remarks
that she made immediately in response to questions directed to
its contents.*fn9 On the present record, I do not agree that
the defendant's confession must be suppressed as the fruit of
an illegal search. The defendant's arrest was pursuant to a
valid warrant issued prior to the search and the confession was
made after the search and after the defendant was removed from
the apartment. She was fully advised of her rights and the
confession was an entirely voluntary one. Moreover, there is no
evidence that the Customs Service Agents used or referred to
the evidence found in the apartment in questioning her.*fn10
See Y. Kamisar, W. LaFave, J. Israel, Modern Criminal
Procedure 752 (7th ed. 1990) ("[C]onfronting a suspect with
illegally seized evidence tends to induce incriminating
statements by demonstrating the futility of remaining silent,
and thus the warnings have even less of an impact in such
situation than in the case of an illegaarrest . . . .").
Indeed, the defendant either denied or could not recall making
any of the statements attributed to her.
While there is support for a rigid application of the
exclusionary rule to suppress any confession made after an
illegal seizure, 4 LaFave, Search and Seizure § 11.4(c)
(1987), the Supreme Court has declined to adopt such a rule in
confession cases and in other analogous contexts. See e.g.
United States v. Cecollini, 435 U.S. 268, 98 S.Ct. 1054, 55
L.Ed.2d 268 (1978). On the contrary, the issue of the
admissibility of defendant's confession should turn on whether
it is sufficient for deterrent purposes to suppress the
evidence seized pursuant to a defective consent search and the
statements that are immediately attributable to it. See United
States v. Leon, 468 U.S. 897, 910, 104 S.Ct. 3405, 3413, 82
L.Ed.2d 677 (1984); United States v. Cecollini, 435 U.S. at
275-276, 280, 98 S.Ct. at 1059-1060, 1062; United States v.
Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561
(1974). As Justice Stevens aptly stated it:
These holdings make it clear that taint questions do not
depend merely on questions of causation; causation is a
necessary but not a sufficient condition for exclusion. In
addition, it must be shown that exclusion is required to
remove the incentive for the police to engage in the unlawful
conduct. When it is, exclusion
is mandated if the Fourth Amendment is to be more than "a
form of words."
Segura v. United States, 468 U.S. 796
, 830, 104 S.Ct. 3380,
3398, 82 L.Ed.2d 599 (1984) (Stevens, J. dissenting).
When a confession is obtained after the unlawful seizure of the
defendant, it is normally excluded even when the methods used
to obtain the confession did not violate the Self-Incrimination
Clause. Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73
L.Ed.2d 314 (1982), Brown v. Illinois, 422 U.S. 590, 95 S.Ct.
2254, 45 L.Ed.2d 416 (1975). Because such seizures are usually
made for the very purpose of obtaining a confession, it would
seriously undermine "the effect of the exclusionary rule in
deterring illegal arrests" if such confessions were admitted.
As Justice Blackmun observed in Brown v. Illinois:
If Miranda warnings, by themselves, were held to attenuate
the taint of an unconstitutional arrest, regardless of how
wanton and purposeful the Fourth Amendment violation, the
effect of the exclusionary rule would be substantially
diluted. Arrests made without warrant or without probable
cause, for questioning or "investigation," would be
encouraged by the knowledge that evidence derived therefrom
could well be made admissible at trial by the simple
expedient of giving Miranda warnings. Any incentive to
avoid Fourth Amendment violations would be eviscerated by
making the warnings, in effect, a "cure-all," and the
constitutional guarantee against unlawful searches and
seizures could be said to be reduced to "a form of words."
422 U.S. at 602-03, 95 S.Ct. at 2261 (footnote and citations
Cases such as the present one, where a confession is obtained
after an illegal search and seizure of tangible evidence, are
materially different from cases in which a confession is
obtained following an illegal arrest. A search is not usually
undertaken to obtain evidence that would be used to induce a
defendant to confess to a crime. Rather, the purpose of a
search is to find physical evidence of criminal activity that
can be used against the defendant at trial. The fact that
highly incriminating physical evidence will be suppressed if
obtained as the result of an illegal search should suffice to
deter misconduct. Accordingly, because "the incremental
deterrent value [of doing so] would be minimal," there is no
need to go so far as to suppress a voluntary statement made
some hours later when the defendant was lawfully in custody and
where there is no evidence that fruits of the unlawful search
were impermissibly exploited during the interrogation.*fn11
See New York v. Harris, ___ U.S. ___, 110 S.Ct. 1640, 1644,
109 L.Ed.2d 13 (1990).*fn12
Because the issue of whether the illegally seized evidence was
used to induce the defendant's confession was not fully
explored at the suppression hearing or at trial, and because
the Assistant United States Attorney argued in her summation
that the defendant confessed only after being confronted with
such evidence, it would not be appropriate to conclusively
resolve this issue before the parties have had the opportunity
to address it. See Fahy v. State of Connecticut, 375 U.S. 85,
91, 84 S.Ct. 229, 232, 11 L.Ed.2d 171 (1963).