the number of officers or agents present in the office when Allman and Fry arrived with defendant to be of consequence to the court's determination of the issues at this stage, since defendant's resident alien status was confirmed with minutes of their arrival.
Accordingly, the record sufficiently establishes that the initial encounter on the street was consensual, and that the investigative detention of defendant was warranted by the officers' reasonable suspicion that defendant was in violation of the immigration laws. Further, the actions taken by the officer to confirm or dispel that suspicion, up to the point at which Deputy Fry began to search defendant's duffle bag, were not unreasonable under the circumstances. I therefore find that the encounter between the officers and defendant did not violate defendant's fourth amendment rights so as to require suppression of the evidence found as a result of the search.
The crucial issue in this case, as revealed by the hearing testimony and the pleadings, is whether the warrantless search of defendant's duffle bag was justified by defendant's knowing and voluntary consent. It is to this issue that the court now turns.
It is not disputed that a warrantless search conducted pursuant to a valid consent is constitutionally permissible, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The government has the burden of establishing by a preponderance of the evidence, "with clear and positive testimony," United States v. DeWitt, 946 F.2d 1497, 1500 (10th Cir. 1991), cert. denied sub nom. Rison v. United States, U.S. , , 112 S. Ct. 1233, 117 L. Ed. 2d 467 (1992), that the defendants consent was "freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968); see also United States v. Mendenhall, 446 U.S. 544, 557, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980); United States v. Matlock, 415 U.S. 164, 177, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). The dispute in this case is twofold: (1) whether defendant ever actually consented, either in words or actions, to Deputy Fry's search of his bag, and (2) if he did consent, whether the consent was voluntary.
As to whether defendant consented to the search, either on the street or at the NFTA police office, the testimony is in direct conflict. Fry testified that when he asked defendant if he could look into his bag during the initial encounter on the street, he also advised defendant that he did not have to consent to the search, and the defendant said, "go ahead" (T. 14-15). Agent Allman testified that he did not hear the conversation on this point. The defendant testified that Fry "asked" to look into his bag, but that his tone of voice and manner indicated that he had no choice, and furthermore that he never stated "go ahead" or other words indicating permission to search.
After hearing the witnesses and assessing their credibility during the hearing, I find that the defendant's testimony was credible and worthy of belief. The defendant was articulate, intelligent and very detailed in his recollection of the events. He at one point demonstrated, through the use of different inflections, how the same words could be used to pose a genuine question or to state a command. The conflict in testimony must be resolved against the government, since it had the burden of proof.
There is a similar conflict on the issue of whether defendant consented to a search at the NFTA police office. Fry testified that he asked for permission to search, and the defendant again stated, "go ahead." The defendant testified that Fry placed the bag on the desk and began searching without asking.
Again, I find that the conflict must be resolved against the government. Furthermore, any consent the defendant may have given on the street would not necessarily carry over to establish consent under the more custodial conditions of the NFTA police office. U.S. v. Watson, 423 U.S. 411, 424, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976). Accordingly, the government has not proven consent to search.
But even if the defendant had consented to the search, the government must prove that, under the totality of circumstances, the defendant's consent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973).
Voluntariness may not be established simply by a showing of mere acquiescence to a police officer's request. United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993). Consent may be inferred from an individual's gestures or conduct, as well as his or her words. United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir.), cert. denied, 454 U.S. 830 (1981).
There is nothing about defendant's age (27), intelligence, or education that would indicate lack of capacity to give consent, and there is no evidence that defendant's capacity was in any way diminished by drugs or alcohol. The record is clear that upon reaching the police office, plaintiff was not again asked whether he understood that he could refuse the officer's request to look through his bag, nor was he advised of his Miranda rights prior to the search. While not of "controlling significance," lack of a clear showing that defendant knew he could withhold consent is a factor to be considered in the voluntariness determination. Watson, supra; United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990).
Furthermore, the search of the bag proceeded while Allman was still on the telephone attempting to confirm defendant's immigration status. The scope of the search was therefore not limited to the actual purpose of the detention -- i.e., a determination of defendant's immigration status. There is no doubt that Deputy Fry was conducting the search on the basis of what he believed to be consent given by defendant after being informed that Fry was investigating drug trafficking, and there is no doubt that the officers were looking for drugs. The government has failed to offer any explanation, through hearing testimony or otherwise, why the officers could not have waited another minute or so while Allman obtained defendant's immigration status information. The officers could then have clearly and carefully informed defendant about his right to refuse to allow them to search his bag, and could have attempted to obtain his consent under the circumstances of his investigative detention rather than relying on the vague circumstances surrounding the consent allegedly obtained during the initial encounter on the street.
Further, the Pretrial Services Report submitted by the Department of Probation indicates that defendant had no prior criminal record, and thus had no special knowledge or awareness of the protections afforded to suspected criminals by this country's legal system. Watson, supra, 423 U.S. at 424-25. There is no indication in the record that defendant knew anything about the scope of his right to legal representation, the ability of the government to use the fruits of the search against him, or any other constitutional or procedural protection.
With regard to the other factors relevant to the voluntariness determination, the record is clear that defendant was not detained and questioned for a long time, was not threatened, physically intimidated, or punished by the police, did not rely upon promises or misrepresentations made by the police, and did not object while the search occurred. However, as discussed above, defendant was in custody under investigative detention when the search was conducted. He was being detained in a secluded place, in the presence of no less than three and as many as six law enforcement officers, as least one of which carried a prominently displayed weapon.
Based on the record before the court, therefore, and after considering all of the circumstances surrounding the search of defendant's bag, I find that the government has not met its burden of demonstrating with clear and positive testimony that defendant gave an informed, knowledgeable and voluntary consent to the search.
III. Inevitable Discovery.
Finally, the government argues that the search should be upheld because the drugs would have inevitably been discovered in an inventory search conducted incident to defendant's detention on an immigration detainer. I find that the government has likewise failed to sustain its burden of establishing inevitable discovery by a preponderance of the evidence. See, e.g., United States v. Whitehorn, 829 F.2d 1225, 1230 (2d Cir. 1987), cert. denied, 487 U.S. 1237, 101 L. Ed. 2d 939, 108 S. Ct. 2907 (1988).
The inevitable discovery doctrine provides an exception to the exclusionary rule where the government can demonstrate that the evidence would have been acquired lawfully through an independent source absent the government misconduct. Murray v. United States, 487 U.S. 533, 539, 101 L. Ed. 2d 472, 108 S. Ct. 2529 (1988). As stated by the Second Circuit:
The facts of cases applying the inevitable discovery doctrine suggest that proof of inevitability is made more convincing when the areas of the search or investigation are well-defined, the government effort is planned and methodical, and a direct causal relationship and reasonably close temporal relationship exist between what was known and what had occurred prior to the government misconduct and the allegedly inevitable discovery of the evidence.