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November 17, 1992



The opinion of the court was delivered by: KENNETH R. FISHER

The defendant (referring to the defendant in the underlying criminal complaint -- the title of this action is reversed for the reasons stated in fn.2, infra) is charged by a criminal complaint with falsely representing himself to be a citizen of the United States, in violation of 18 U.S.C. § 911, and with making false statements to a federal officer concerning a material matter within the jurisdiction of a United States agency, in violation of 18 U.S.C. § 1001. After a lengthy preliminary examination on August 3, 1992, the defendant was held to answer in district court pursuant to Fed. R. Crim. P. 5.1(a).

 In advance of any grand jury proceedings, defendant seeks return of, and moves to suppress evidence of, items of personal property seized during a warrantless search of his apartment (#6) at 132 S. Union Street in the City of Rochester. That search took place immediately after defendant's arrest in connection with an undercover purchase of 1/2 ounce of cocaine in the hallway outside apartment #6 during the evening of February 18, 1989. Removed were defendant's wallet and a Virgin Islands birth certificate. Defendant also moves to suppress statements the government claims he made to an Immigration and Naturalization Service ("INS") agent on that date, and statements he made to another INS agent much later, on March 15, 1989. These statements are the basis of the criminal complaint.

 The defendant contends that these motions will have a "potentially dispositive effect . . . on the defendant's rights and plea options as well as the Government's ability to proceed with the prosecution of this case, [and] the Government has agreed to delay presentation of this matter to the Federal Grand Jury until after this motion has been determined by the Court." Feldman affidavit P 5, at 2-3. Without addressing the substance of defense counsel's statement, the government merely states that "the jurisdiction of the Court to consider the defendant's motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure is not contested." This motion was referred to me by Chief Judge Michael A. Telesca by Order dated September 17, 1992, and filed September 24, 1992.

 A. Testimony at the Hearing

 In addition to the wallet and identification documents found during the search of defendant's apartment, there are two statements which defendant moves to suppress. The first statement, in which defendant claimed U.S. citizenship by virtue of birth in the Virgin Islands, was made to an INS agent on the day of defendant's arrest for selling cocaine to an undercover officer. The second statement was made nearly a month later to another INS officer who was conducting a follow-up investigation at the jail. The first was made without Miranda warnings. The second was made after a full waiver of Miranda rights. Although defendant concedes the voluntariness of each statement, he claims that they were made as a result of the unlawful search of his apartment, that the first must also be suppressed under Miranda, and he contends the second statement was a product of the unwarned first statement. He also contends that the second statement was obtained in violation of his Miranda-right-to-counsel and certain ethical rules applicable to attorneys. The government concedes that the wallet and identification documents must be suppressed as the fruit of a warrantless search not justified by exigent circumstances. It has further represented that it cannot prosecute defendant if both statements are suppressed.

 1. The First Statement

 Special Agent Michael John McLaughlin of the Immigration and Naturalization Service and Rochester Police Officer Kenneth Mann each testified that, on February 18, 1989, they were working together as part of a "Jamaican Organized Crime Squad." In addition to their interest in illegal narcotics trafficking, the squad was on the lookout for Jamaican citizens illegally present within the United States. Before they encountered the defendant that evening, these officers had arrested another individual who had turned state's evidence and had become an informant. The informant said he was willing to "give up" his supplier, and arrangements were immediately made to attempt a controlled buy of cocaine from the defendant.

 McLaughlin testified that he went to defendant's apartment at 132 South Union Street at about 9 p.m. When he, Morris and Mann arrived, McLaughlin stayed outside while Morris and Mann went in to the main vestibule or hallway of the apartment building. According to Mann's testimony, the cocaine transaction occurred there. When defendant was arrested, a scuffle ensued. The officers finally secured the defendant on the ground outside the building. Morris and Mann both testified that the key to defendant's apartment was found in one of his pockets at the time of his arrest, and that Morris went up to the apartment with some other officers where a search was conducted. But McLaughlin's and Mann's testimony concerning the subsequent events differs in many respects.

 McLaughlin maintained that he went upstairs to the apartment with Morris and Mann while the defendant was detained downstairs. McLaughlin maintained further that defendant appeared in the apartment doorway with a uniformed officer a very short time after McLaughlin himself entered. When McLaughlin went into the living room of the apartment, he observed another woman, Anne Marie Kerr, lying or sitting on a mattress. While the search was taking place, McLaughlin talked to Kerr, who stated that she was a Canadian citizen. McLaughlin testified that he then turned to the defendant and, without any advisement of rights, asked his name and his citizenship. Defendant said he was Rainford Thompson and that he was from the Virgin Islands. McLaughlin testified that he had no information concerning the defendant at that time. The search, according to McLaughlin, had not yet been completed. It was only later that the wallet containing the defendant's Virgin Islands birth certificate was discovered. McLaughlin testified that these documents were found "quite awhile after" he spoke with defendant. The wallet, which was found by the mattress either on the floor or under a pillow, was displayed to McLaughlin by Officer Mann, who pointed out the identification documents found within. The documents were secured by a Rochester Police Department officer and kept with defendant's belongings at the Monroe County Jail.

 Officer Mann remembered the events at the apartment that evening somewhat differently. Mann testified that, after the defendant was secured on the ground after the scuffle, he placed defendant in a squad car. Mann testified that the defendant never went back to the apartment, and that he did not see McLaughlin in the apartment. According to Mann, McLaughlin was in the hallway while Rochester Police officers were searching the apartment. Mann confirmed, however, that Anne Marie Kerr was in the apartment and that a birth certificate and a marriage license were found during the search.

 The defendant, for his part, testified that he was arrested in the lobby near his apartment and was taken to the police car by Officer Mann. Defendant testified that he was never taken back upstairs, and that McLaughlin didn't interview him until he arrived downtown at the stationhouse after the arrest. The defendant testified that he was not questioned before he was put in the police car, and that he was not questioned in the car on the way downtown to the stationhouse. The defendant stated that he was taken to a 6 foot by 6 foot room and locked up, after which an INS officer came in by himself, told defendant who he was, and asked defendant his name, date of birth, and place of birth, "for INS purposes." The custody log, however, does not corroborate this version; it does not show that McLaughlin was in defendant's presence while defendant was at the stationhouse.

 2. The Second Statement

 A few days after the events on February 18, 1989, Special Agent McLaughlin ordered an investigation of defendant's citizenship. McLaughlin doubted defendant's claim to U.S. citizenship and he specifically doubted the authenticity of the Virgin Islands birth certificate found in defendant's wallet. INS Special Agent Peter Frederick Hoelter was asked to investigate the authenticity of the certificate, which at that time was in the possession of the Monroe County Jail. Someone at INS (initials "VDS") *fn1" attempted to procure a copy of the certificate from the Monroe County Jail on March 3, 1989. The Monroe County Jail refused to release the certificate in the absence of a court order or defendant's permission.

 The record contains conflicting evidence of the Gallina-Hoelter conversation. First, Hoelter maintained in his preliminary examination testimony, and the government maintains on this motion, that he called Gallina in advance to request permission for the Thompson interview. Hoelter does not state, however, and the government does not now maintain, that the requested permission was ever given. Instead, the government merely states: "Neither as part of this telephone conversation or at any time thereafter, did Fred S. Gallina tell Special Agent Hoelter that he could not interview Thompson." Government's Response, at 3. Hoelter's contemporaneous memorandum of the conversation did not even touch on the subject of permission; it states that "Gallina was advised that subject needed to be interviewed by INS . . . " and that "INS wanted a copy" of the suspect birth certificate. Gallina asserted in his affidavit that he did not give permission for the interview, and he speculated that defendant might have already been interviewed by Hoelter. The conflict is not material, however, as will be shown below.

 The jailhouse interview occurred at 4:30 p.m. that day, November 15, 1989. Defendant was advised of his rights in writing and he signed a waiver form (INS Form I-214). Defendant declared again that he was a United Sates citizen by reason of his birth in the Virgin Islands. Defendant gave a written release to Hoelter which ...

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