The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, JR. U.S.D.J.
On July 5, 1995, Defendant Jesus Ramirez was indicted on two counts of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and with importation of heroin into the United States in violation of 21 U.S.C. § 952(a), and 18 U.S.C. § 2. The case is presently before the Court on Ramirez's motion to suppress physical evidence seized pursuant to his arrest. On September 13, 14, 28 and October 3, 1995, the Court conducted an evidentiary hearing and subsequently considered written submissions from the parties.
On June 22, 1995, Customs Agents and other local enforcement officers in New York learned that a controlled delivery of a package containing drugs ("the Package") would be dropped off at a Mail Boxes etc. in Mt. Kisco New York. The officers had received information from the United States Customs Service in Miami, Florida ("the Miami Agents") that the Package, which came from Colombia, contained heroin hidden in steel gears. The Miami Agents removed the heroin but forwarded the Package to its delivery address to determine the identity of its recipient.
At approximately 2:30 P.M. on June 22, the Customs Agents and other officers parked close to the Mailboxes Etc. saw Ramirez drive up in a 1985 Dodge Omni and go into the Mailboxes Etc. Moments later, Ramirez exited the Mailboxes Etc. carrying the package, got back into his car and drove off. The officers followed Ramirez to a residence at 35 Rome Avenue, Bedford Hills, New York ("the Residence") where they met up with Special Agent Ellwanger ("Ellwanger") of the Internal Revenue Service, Special Agent McSweeney ("McSweeney"), a United States Customs Agent, and Special Agent Greenan ("Greenan"), also a United States Customs Agent. Ramirez exited his car and went into the Residence. Within one minute, he returned, carrying a hammer, a screwdriver and a pair of electrical pliers. Ramirez went back into his car and apparently attempted to open the package with a screwdriver. The officers waited a moment or two before they arrested him. At some point between 3:50 and 4:00 P.M., Greenan, Ellwanger, McSweeney and Senior Westchester District Attorney Investigator Pat Storino
("Storino") approached the car. Greenan, with his hand on his unholstered gun, told Ramirez to get out of the vehicle; Ellwanger told him to put his hands up. Greenan then took Ramirez out of the car and patted him down for a weapon while Ellwanger handcuffed him. Greenan then put Ramirez against his car where he and McSweeney searched him again; Greenan told Ramirez that he was under arrest. During this time, Ellwanger, McSweeney and Storino drew their guns until they felt that Ramirez was safely in handcuffs--approximately ten to thirty seconds. Greenan switched Ramirez's handcuffs from the original rear cuff position to a front cuff position and placed him in the back seat of his car. Ellwanger, who had been sitting in the car, told Ramirez why he was being arrested and advised him of his Miranda rights. Ramirez stated that he wished to speak with an attorney. Ellwanger immediately ceased his questioning.
The agents soon learned that Ramirez maintained a room and paid rent to his sister, Isabel Cardozo ("Cardozo") at the residence. McSweeney then approached the house and spoke with Cardozo. While the facts surrounding the interaction between Cardozo and McSweeney (as well as the other officers) are the subject of some dispute
, it is clear that Cardozo signed a consent to search form in which she authorized the agents to search her residence.
At that point Special Agent McSweeney, concerned that Isabel Cardozo's consent was not valid, asked for and received permission from Case Agent Mike McKenna and his supervisor, Special Agent Edward Choo ("Choo")
to ask Ramirez for his consent to search the room. Agent Greenan then exited the car, and McSweeney in conformity with safety procedures handed his gun to Greenan and joined Ramirez who was, by this time, front-cuffed in the back seat. McSweeney, aware that Ramirez "was not talking," identified himself as a customs agent, re-read Ramirez his Miranda rights, told him that "he was under arrest for narcotics statutes" and then asked Ramirez for his consent to search the room. According to McSweeney, Ramirez spent a minute reading the same consent to search form provided to Cardozo and then signed it.
After completing the search, McGrath provided Ramirez with an inventory form listing the items seized from Ramirez's room during the search. The preface to the inventory form provided: "I, Jesus Ramirez, after being advised of my constitutional rights and having given consent to the search of my room at [the residence], hereby acknowledge the seizure of the following items." After reading the form, Ramirez initialled it.
Ramirez argues that the items seized from his room should be suppressed because the search violated his Fourth Amendment right to be free from unreasonable searches and seizures.
It is well established Fourth Amendment law that an individual has a right to be free from unreasonable search and seizures, and that "a search conducted without a warrant issued upon probable cause is 'per se unreasonable. . . subject only to a few specifically established and well delineated exceptions.'" Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (quoting Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). "It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth, 412 U.S. at 219.
In this case Ramirez argues that his consent was not voluntary.
He relies on the undisputed fact that he had been arrested at gunpoint by several agents, detained in a car, and handcuffed just minutes before he signed the form and had invoked his right to remain silent before consenting to the search.
The question of whether a consent is valid is a question of fact to be determined from the totality of the circumstances. Schneckloth, 412 U.S. at 227. The Second Circuit has instructed that the factors to be considered in determining voluntariness should include, among other things, the possible vulnerable mental state of the consenting party, the details of the investigation, and the individual's intelligence and experience. See United States v. Medico, 557 F.2d 309 (2d Cir. 1977), cert. denied 434 U.S. 986, 54 L. Ed. 2d 480, 98 S. Ct. 614 (1977); United States v. Price, 599 F.2d 494 (2d Cir. 1979). The government need not show, to prove consent, that the subject knew he had a right to decline the request for a search. United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 Schneckloth, 412 U.S. at 234. United States v. Crespo, 834 F.2d 267, 271 (1987).