of probable cause. Calamia v. New York, 879 F.2d 1025, 1032 (2d Cir. 1989), citing Illinois v. Andreas , 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 103 S. Ct. 3319, n.5 (1983) (where law enforcement officers are cooperating in an investigation, the knowledge of one is presumed shared by all). At the time of the search, Agent McCormick was aware that the CI, who was of known reliability, had been in the 119th Street apartment, had seen guns in the apartment, had discussed cocaine purchases with Manny, and had been told by Manny that he had a kilogram of cocaine in the 119th Street apartment as of the day before the search and that Manny would sell the cocaine to the CI. Agent McCormick was prepared to elaborate on the draft affidavit if the Magistrate had requested more detailed information. Because the agents were in possession of sufficient information to support a finding of probable cause, and because the agents were clearly deployed to execute the warrant once it issued, the inevitable discovery doctrine applies.
III. STATEMENTS AND ADMISSIONS MADE IN CONNECTION WITH THE SEARCH OF THE 119TH STREET APARTMENT
Cabassa's Fifth Amendment challenge to statements and admissions made in connection with the search of the 119th Street apartment is a separate and distinct issue from his Fourth Amendment challenge to the evidence seized there. See, e.g., Brown v. Illinois, 422 U.S. 590, 601, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). Accordingly, even though the seizure of evidence at the 119th Street apartment was proper, Cabassa's Fifth Amendment challenge must be addressed independently.
Agent McCormick testified that immediately upon entering the 119th Street apartment, the agents subdued Cabassa and placed him in handcuffs. In his affidavit filed in support of this motion, and in his testimony at the hearing, Cabassa stated that at no time was he ever told of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The Government has presented no evidence to contradict this assertion. It appears, therefore, that as soon as the agents entered the 119th Street apartment, Cabassa was placed in custodial situation and subjected to interrogation within the meaning of Miranda. Accordingly, the agents' failure to advise Cabassa of his rights, including his right to remain silent, requires the suppression of any and all statements or admissions made by Cabassa after the agents entered his apartment.
IV. PHYSICAL EVIDENCE SEIZED AND STATEMENTS AND OMISSIONS MADE IN CONNECTION WITH THE SEARCH OF THE 120TH STREET APARTMENT
A consensual warrantless search comports with the Fourth Amendment only if the consent was given voluntarily. Whether a defendant's consent was voluntary or the product of duress or coercion is to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). See also United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). The burden to show the voluntariness of consent falls on the Government. Schneckloth, 412 U.S. at 222.
Agent McCormick testified that the search of both the 119th Street apartment and the 120th Street apartment was done with Cabassa's consent. In his supporting affidavit and testimony given at the hearing, however, Cabassa stated that at no time did he consent to the search of either apartment.
This assertion is undercut by Cabassa's own admissions that he told the agents the combination to the safe containing the jewelry and the $ 18,000, that he accompanied the agents to the 120th Street apartment, and that he opened the door to the 120th Street apartment with his key. Cabassa's explanation for his trip to the 120th Street apartment is that Agent McCormick had previously testified that the CI had told him the address of the second apartment. The record is to the contrary. Transcript of Hearing of December 10, 1991 at 12-13. Accordingly, the Court finds that Cabassa did consent to the search of the 120th Street apartment. That consent, however, was not obtained voluntarily because the circumstances indicate that the defendant was under duress at the time he gave his consent, and because the defendant did not receive a Miranda warning prior to giving his consent. Because the Government has not presented evidence showing that any other exception to the warrant requirement applies to the search of the 120th Street apartment or to the contraband found there, the evidence seized there, as well as any statements or admissions made by Cabassa in connection with that search, is suppressed.
V. PRIOR SEARCHES OF THE PREMISES
No grounds have been shown for Defendant's motion to suppress evidence seized in prior searches of the premises. Accordingly, this part of Defendant's motion is denied.
Defendant's motion for an order disclosing the identity of the Confidential Informant is denied. Defendant's motion to suppress physical evidence seized in connection with the search of Apartment 4F at 158 East 119th Street, New York, New York, is denied. Defendant's motion to suppress statements and admissions made by the Defendant in connection with the search of Apartment 4F at 158 East 119th Street, New York, New York, is granted. Defendant's motion to suppress evidence seized and statements and admissions made by the Defendant in connection with the search of 238 East 120th Street, New York, New York is granted. Defendant's motion to suppress evidence seized in prior searches of the premises is denied.
The parties are ordered to attend a conference on January 13, 1992 at 9 a.m. in Courtroom 302 to set a date in the near future for trial.
IT IS SO ORDERED.
Dated: New York New York
January 9, 1992
ROBERT P. PATTERSON, JR.