The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.
Defendant Jose Reyes ("Reyes") has filed pretrial motions seeking various forms of relief. Defendant Thomas Rodriguez ("Rodriguez") has joined in these motions to the extent they affect him and has also asked that his case be consolidated with a different pending case, or, in the alternative, that he be granted a severance.
After the submission of extensive briefs on the issues raised, a number of the motions were resolved. See generally Transcript of Proceedings, September 1, 1995. An evidentiary hearing was then held with respect to several of the remaining issues on October 5, 6, and 20, 1995. Post-trial briefs were submitted following the hearing. Before addressing the motions, I shall list the remaining issues and set forth the relevant facts.
Reyes first moves to suppress the fruits of four searches made pursuant to search warrants issued by a Magistrate Judge in Florida.
The heart of that motion is that probable cause to search was lacking because the information in the affidavits was stale. Reyes also challenges the initial entry into his hotel room, pursuant to a duly issued arrest warrant; that entry provided some of the material included in the search warrant affidavits. This challenge is based on Reyes' contention that the entry into the room was illegal because the agents could not reasonably have believed that Reyes was in the room and/or that they failed to announce their presence when they knocked on the door. Reyes next moves to suppress the fruits of the "search" of three electronic paging devices, found in various locations. With respect to two of those pagers, Reyes asserts that the pagers were wrongfully seized and/or should not have been accessed. The third pager was seized from the hotel lost and found pursuant to one of the allegedly defective warrants. Finally, Reyes seeks to suppress statements he made during questioning by law enforcement agents following his arrest. Reyes argues that while the waiver of his rights was knowing, it was not voluntary given the lapse of time between arrest and arraignment and his deteriorating medical condition.
On November 16, 1994, Reyes was indicted for narcotics-related offenses by a grand jury sitting in the Southern District of New York. An arrest warrant was contemporaneously issued. On Friday, December 2, 1994, the Bureau of Alcohol, Tobacco and Firearms ("ATF") received information that Reyes might be staying in the Airport Hilton Hotel in Miami, Florida. See Transcript of Hearing ("Tr.") at 202. A copy of the arrest warrant and a picture of Reyes were faxed to ATF agents in Miami. Tr. at 203. The Miami agents knew that Reyes was a paraplegic confined to a wheelchair. Tr. at 90.
I. The Entry into Reyes' Hotel Room
On the evening of December 2, 1994, four ATF agents (Davis, O'Keefe, Foster and Lawrence) proceeded to the Airport Hilton. Tr. at 33-34. The record is not clear as to when they arrived, but it would appear to be after 6 p.m. on Friday evening. See generally Tr. at 30. They learned from a desk clerk that Reyes was a guest at the hotel staying in Room 609. Tr. at 33. The record is unclear as to whether the agents knew or should have known that Reyes was not in his room at the time. In any event, after the agents knocked on the door and phoned the room, with no response to either, a hotel security guard opened the door to the room. The four agents entered the room and conducted a security sweep. Tr. at 16, 80, 93. They observed clothes, books, magazines, and medical accessories. Tr. at 15, 93-94. No one was inside the room. Tr. at 16, 93-94 The agents removed nothing from the room. However, the agents' observation of Soldier of Fortune magazine and a book entitled Hitman in Reyes' hotel room was included in the subsequent affidavits for search warrants.
II. Reyes' Arrest and the Search of the Car
Later on the evening of December 2, 1994, Reyes returned to the hotel in a Lincoln Town Car driven by Victor Salazar. Salazar helped Reyes into his wheelchair and pushed him into the hotel. Reyes was then arrested in the hotel lobby. Tr. at 94. Reyes identified himself as Benjamin Polanco, not Jose Reyes. Id. The agents recovered a bag attached to Reyes' wheelchair containing a Sharp Wizard computer and a pager. Tr. at 95. A search warrant was later obtained to search the files of the Sharp Wizard computer. As noted earlier, Reyes challenges the warrantless retrieval of information contained in the pager seized from the bag on his wheelchair.
Two other ATF agents, Murphy and Coad, separated Salazar from Reyes. Salazar gave the agents permission to search the car. Tr. at 117-118. A pager was found in the back seat of the car and two receipts were found in the glove compartment--one for the car rental and one for ABC Mini Storage. Both receipts were in the name of Alejandra Posada. Tr. at 119, 144. When asked to whom the receipts belonged, Salazar responded that "those receipts belong to him [Reyes]. You'll have to ask him." Tr. at 119, 145. After the seizure, Agent Murphy may have informed Agent Davis that he thought Alejandra Posada might be an alias used by Reyes. Tr. at 133. Once again, Reyes challenges the warrantless retrieval of information contained in the pager seized from the car.
Agents Davis and O'Keefe then transported Reyes to the Metropolitan Correction Center ("MCC") outside Miami. When Agent Davis filled out a personal history form for Reyes she listed the name "Alejandro Posada" as an alias. Reyes was lodged at the MCC. Tr. at 20-22.
On Sunday, December 4, 1994, Agent Davis, together with case Agent Horne and two investigators from New York, went to the Miami U.S. Attorney's office where search warrants were being drafted. The drafting began with an e-mailed draft prepared in New York by Assistant U.S. Attorney ("AUSA") Tom Clark. Tr. at 25, 207, 313-14. This draft was then revised by local AUSA Jose Boneau. Tr. at 318. The agents spoke with both AUSAs. Both Agents Horne and Davis reviewed the draft warrants before they were presented to the Magistrate Judge. Tr. at 25-27, 207-11. The warrants were issued later that evening. The agents searched the ABC Mini-Storage and the hotel lost and found that same night. The search of the Sharp computer was conducted the next day. Several days later, on December 7, a fourth warrant was issued. That warrant authorized a second search of the ABC Mini-Storage locker.
IV. The Interview of Reyes
After the warrants were signed, Agent Horne and two New York investigators went to the MCC to interview Reyes. Tr. at 180, 213. When Reyes entered the visitors room, the agents identified themselves and Agent Horne read Reyes his Miranda rights. Reyes signed a piece of paper to which the card containing the Miranda rights had been stapled, acknowledging that he had received and understood his rights. Government Exhibit ("GX") 5 (waiver of rights); Tr. at 182, 214, 354. Reyes then spoke with the agents.
V. The Recovery of the Third Pager and Reyes' Arraignment
A third pager was recovered from the search of Reyes' belongings that had been moved to the hotel lost and found. Tr. at 159, 219. The parties dispute whether the pager was on or off when it was found. In any event, Agent Horne kept the pager in her room overnight. Tr. at 160, 219. The next morning, during a meeting with the other agents in her hotel room, the pager went off, and the investigators recovered the messages from the pager over the course of the next four days. Tr. at 161, 168. Later that morning (Monday), Reyes was arraigned in federal court in Miami. A woman identified as Alejandra Posada attended the arraignment. Tr. at 162, 220, 221.
I. The Entry into Reyes' Hotel Room
Reyes asserts that the ATF agents acted unlawfully when they entered his room at the Miami Hilton to execute an arrest warrant. Because facts observed by the agents while in the room were used in the affidavits supporting four search warrants, Reyes argues that the evidence seized pursuant to those warrants must be suppressed.
Section 3109 of Title 18, United States Code, states in part:
The officer may break open any outer or inner door or window of a house or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . .
The restrictions which § 3109 imposes on law enforcement officers are of constitutional dimension. Wilson v. Arkansas, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995) . Section 3109 has been held to apply to arrest warrants, Sabbath v. United States, 391 U.S. 585, 588, 20 L. Ed. 2d 828, 88 S. Ct. 1755 (1968), and to hotel or motel rooms, United States v. Nolan, 530 F. Supp. 386, 392-93 (W.D. Pa. 1981), aff'd, 718 F.2d 589 (3d Cir. 1983) Finally, a hotel employee may not provide lawful consent to police entry into the hotel room of a guest. Stoner v. California, 376 U.S. 483, 490, 11 L. Ed. 2d 856, 84 S. Ct. 889 (1964).
The statutory requirement that agents be "refused admittance" before forcing an entry does not require an affirmative refusal, but is satisfied when the circumstances permit the agents to reasonably infer that they have been refused admittance. See, e.g., United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir. 1991); United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822, 824 (D.C. Cir. 1989); United States v. Williams, 573 F.2d 348, 350 (5th Cir. 1978); United States v. James, 528 F.2d 999, 1017 (5th Cir.), cert. denied, 429 U.S. 959 (1976); Masiello v. United States, 115 U.S. App. D.C. 57, 317 F.2d 121, 122 (D.C. Cir. 1963). Thus, the question here is whether the ATF agents reasonably inferred that they had been refused admittance when they entered Reyes' hotel room. If such an inference was unreasonable, then the entry was illegal, and the fruits of the search must be suppressed.
Agent Davis testified that she knocked on the door of Room 609 at approximately 9 or 9:30 p.m. and announced that she was a federal agent with an arrest warrant. She further testified that she heard a TV on in the room, and that its volume was so loud that she had to scream when she made her announcement. After receiving no response, she telephoned the room from a house phone. Again she received no response. She then went to the lobby and got a security guard to accompany her back to the room with a set of keys. The guard then knocked on the door and identified himself. When nobody answered, he opened the door with a key. The television set was on, but no one was in the room. See generally Tr. at 15-16, 38-40.
There is significant evidence in the record contradicting Agent Davis' account. Agent O'Keefe, who accompanied Agent Davis, testified that when they first came to the room, they knocked but did not announce themselves. When Agent Davis placed the phone call to the room, Agent O'Keefe could hear the phone ring, raising an issue as to the volume of the TV. Tr. at 92, 102, 105-06. In addition, although Agent Davis testified that she screamed her announcement at the door of Reyes' hotel room, and although there were other hotel room doors across the hall and 5-10 feet to the right of the door to Reyes' room, no one in any other rooms in the area came to his or her door. Tr. at 38-39. Mr. Iadanza, the hotel security officer, testified that at about 9:30 p.m., two officers came to the lobby with a picture of Reyes. Mr. Iadanza recognized Reyes as a guest and told the officers that he had not seen Reyes that day. The agents asked if they could gain access to the room to see if Reyes was there. Mr. Iadanza then accompanied them to the room, knocked, identified himself as security and opened the door. Mr. Iadanza could not recall whether the TV was on. Tr. at 79-81.
Agent Murphy testified that within 15 minutes of his arrival at the hotel, Agent Davis told him that Reyes was not at the hotel. Tr. at 115, 127. While Agent Murphy was unsure of the time of his arrival at the hotel, he did state that it was just starting to get dark. Tr. at 126. The testimony of Agent Davis reveals that on December 2, 1994, it started to get dark at approximately 6:30 p.m. Tr. at 43. Finally, Reyes testified that he had turned the TV off when he left the room (he left at approximately 1 p.m., and did not intend to return until 10 p.m.). He further testified that it was his usual habit to turn off the TV when he was leaving the hotel room, and that he acted in accordance with that practice. Tr. at 346-348.
I credit the testimony of Agent O'Keefe that the first time the agents went to the door, they merely knocked. There is no reason for a hotel guest not to respond to a knock. There is even less reason for a hotel guest not to answer a phone call. It further appears that Agent Davis told Agent Murphy that Reyes was not in the hotel before she entered the room. According to both Agent Davis and Mr. Iadanza, the agents entered the hotel room at 9 or 9:30 p.m. On the other hand, Agent Murphy appears to have arrived at the hotel at about 6:30 p.m. The sequence of these events is confusing.
Finally, the only neutral witness, Mr. Iadanza, testified that it was approximately 9:30 p.m. when the agents came to the lobby and asked if he had seen the person depicted in a photograph of Reyes. Tr. at 79. Mr. Iadanza could not recall whether the TV was on either when he was in the hall knocking at the door or when he entered the room. Tr. at 81, 87. When combined with Agent O'Keefe's testimony that he heard the phone ringing through the closed door, with Reyes' testimony that the TV was off and that he planned to be out for close to nine hours, and with the equivocal wording of the search warrant "hearing a television set they believed to be on inside the room," I find it more likely than not that the TV set was not on. The inference to be drawn from this finding is that the agents did not reasonably believe that they had been refused admittance to the room.
This case is easily distinguishable from the many cases cited by the parties in which a failure to answer a knock and announce may be deemed a constructive refusal to admit. See, e.g., United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822, 824-25 (D.C. Cir. 1989) (refusal where police knew suspects were inside apartment, twice knocked and announced, and heard footsteps running from door as well as thumping or bumping); United States v. Williams, 573 F.2d 348, 350 (5th Cir. 1978) (refusal where no response to knock, but defendant's cars were parked outside the house); United States v. James, 528 F.2d 999, 1017 (5th Cir.), cert. denied, 429 U.S. 959 (1976) (where reliable informant advised that fugitive was at premises, and police, in plain view, announced purpose over bullhorn, failure to respond was tantamount to refusal); cf. United States v. Nolan, 718 F.2d 589, 597 (3d Cir. 1983) (where marshals heard sound of TV or radio inside motel room and motel manager told them suspect had returned to room after re-registering an hour and a half earlier, it was reasonable to conclude that defendant was in the room and might escape, and exigent circumstances existed; however, agents violated § 3109 by failing to knock and announce). The case is similar, however, to United States v. Watson, 307 F. Supp. 173, 175-76 (D.D.C. 1969), where the court held that if an officer knocks on the door of a house he has reason to believe is unoccupied, he cannot reasonably conclude from the non-response that he has been refused admittance.
II. Validity of the Search Warrants
A. Summary of Information in Search Warrant Affidavits
The affidavits in support of the three warrants issued on December 4
contained essentially identical information.
For convenience, I will cite to the Affidavit of Agent Laurie Horne in Support of Application for Search Warrant for ABC Mini-Storage, Dec. 4, 1994 (hereinafter "Horne Aff."). The content of the affidavits can be divided into two categories--information related to narcotics trafficking at a location designated as 1770 Andrews Avenue in the Bronx ("1770") (Horne Aff. PP 3-18) and information related to Jose Reyes (id. PP 19-30). The following is my summary of the information in the first category:
Two confidential informants had been providing information to the ATF since December 1992. On four occasions in June and July 1992, undercover agents bought heroin in the vicinity of 1770. In July 1992, crack cocaine and heroin were seized from 1770, together with notebooks and a handgun. On August 31, 1992, Ambiore Perez was arrested near 1770 with a large amount of crack. CI-2 identified Perez as a "former manager" of crack distribution from 1770. On January 29, 1993, two people were arrested near 1770 with 5 kilograms of cocaine. CI-2 identified these two as "members of the organization distributing drugs from this location." Horne Aff. P 15. CI-2 stated that the organization began distributing drugs as early as 1989 and is still doing so. As recently as November 15, 1994, agents observed persons (identified by CI-2 as members of the organization) engaging in hand to hand transfers with other people. On November 16 and 18, 1994, agents bought heroin in the vicinity of 1770.
The following is my summary of the information contained in the second category:
CI-1 and CI-2 have identified Reyes "as the person they knew to be the overall 'boss' of the drug distribution organization dealing from 1770 . . . ." Horne Aff. P 19 (emphasis added). A third informant, CI-3, believed that he was employed by a drug distribution group led by Jose Llaca. CI-3 distributed drugs with Llaca from 1991 until June 1993 in quantities ranging from 3 to 4 kilograms of crack per week. CI-3 saw Llaca meet "Jay," a crippled person who had another person drive a van for him. CI-3 saw Llaca retrieve kilograms of cocaine from that van on many occasions. Reyes is paralyzed, having been shot in 1992. In October 1992, agents surveilled Reyes to a New Jersey hotel, where he stayed in a room rented by his driver. The driver's credit card reflected at least two airline tickets purchased in Reyes' name and rentals of many handicapped equipped hotel rooms in various locations. Hotel records also reflected phone calls to a store in New York identified by various persons (not named) as a place out of which Reyes had distributed drugs. Cash Transaction Report records revealed that Reyes' driver deposited $ 33,000 one day with a New Jersey bank and purchased a handicapped-equipped Volvo in New Jersey on the same date (no date was supplied for this transaction). Agent Horne believed that Reyes' driver used his credit card "since August, 1991" to charge thousands of dollars of Reyes' expenses. Horne Aff. P 26. Reyes was found in Miami through phone records showing a call from the hotel to "a telephone number of an associate believed to be in communication with Reyes." Id. P 27. While Reyes admitted he was the person in a prior arrest photo of Jose Reyes, he identified himself as Benjamin Polanco and later as Alejandro Posada. The room at the Miami Hilton was rented since November 15, 1994 in the name of Victor Salazar, Reyes' driver, who had paid for the room with $ 1,000 in cash. Before arresting Reyes, the agents found Soldier of Fortune magazine and a book entitled Hitman in that room. "NYPD has developed evidence it believes to be credible" that Reyes will pay thousands of dollars for the murder of witnesses against Llaca (then on trial in New York). Id. P 29. Llaca had allegedly given this information to "various persons, both inside and outside prison . . . ." Id. Salazar said he was driving a car rented by Alejandro Posada and consented to a search of that car. A current receipt in that name for rental of a mini-storage unit was found in the car. According to interviews with unidentified persons involved in narcotics trafficking, Reyes is not employed. Finally, Agent Horne has "not received any information indicating that Reyes has ceased his association with the organization that operates from the vicinity of 1770 . . . ." Id. P 31. Based on her review of all information available to her, Agent Horne concluded that Reyes has access to substantial sums of cash.
B. Some of the Information in the Affidavits Was Old
The first issue to be addressed is whether the information contained in these affidavits was stale. "In determining whether probable cause exists, the magistrate is required to assess whether the information adduced in the application appears to be current, i.e., true at the time of the application, or whether instead it has become stale." Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991).
Informants identified Reyes "as the person they knew to be the overall 'boss' of the drug distribution organization." Horne Aff. P 19 (emphasis added). The time frame of this past knowledge is not provided, although the affidavit states that they began to provide information in December 1992. CI-3 saw Llaca meet with "Jay," a crippled individual, and retrieve kilograms of cocaine from his van during the period 1991 until June 1993. Thus, the informant information was 18 months old at the time the search warrants were issued. The agents' surveillance of Reyes to New Jersey occurred in October 1992. His driver's credit card records reveal substantial sums spent by Reyes since August 1991, but the affidavit does not state how current those records are. The same is true of the records of phone calls from hotel rooms to stores in New York. The allegation concerning the cash transfer for the purpose of purchasing the Volvo ...