He was told only that the charges related to his involvement in the Latin Kings. Later, at FBI Headquarters, Ramos invoked his right to remain silent and his right to counsel. When Ramos again asked what he was being charged with, he was again given only a general response, and he was told "we know you are a Latin King."
The Supreme Court has recognized that such "positing the guilt" of the person in custody is a technique for eliciting statements from suspects. See Arizona v. Mauro, 481 U.S. 520, 526, 95 L. Ed. 2d 458, 107 S. Ct. 1931 (1987); Innis, 446 U.S. at 299; Miranda, 384 U.S. at 450. Several courts in this District and elsewhere have held that confronting a suspect with a belief in his guilt is the functional equivalent of interrogation. See, e.g., United States v. Szymaniak, 934 F.2d 434, 439 (2d Cir. 1991) (confronting defendant with information gathered from interview of another suspect "was calculated to elicit an incriminating response"); United States v. Brown, 720 F.2d 1059, 1068 (9th Cir. 1984) (accusations of drug selling were equivalent to interrogation); United States v. Dees, 658 F.2d 406, 410 (5th Cir. 1981) (confronting defendant with his failure of a polygraph test was "interrogation" under Innis); United States v. Walker, 624 F. Supp. 103, 105 (D. Md. 1985) ("when the agents showed defendant the [incriminating] document ... only ten minutes after he had invoked his Miranda right to counsel, they had to know that such act was reasonably likely to elicit an incriminating response").
In United States v. Main Street Distributors, 741 F. Supp. 353, 359 (E.D.N.Y. 1990), the Court, presented with facts nearly identical to those here, held that because the agent had posited the suspect's sale of drug paraphernalia, and expressed disapproval of those activities, the defendant's incriminating statements "were made in response to questions or their functional equivalent." Likewise, here, Agent Sullivan elicited a statement from Ramos by positing Ramos' guilty association with the Latin Kings, instead of simply responding to Ramos' question about the charges against him. This additional statement -- that the agents knew Ramos was a Latin King -- constituted interrogation because it was likely to elicit an incriminating response in the form of an admission or false denial.
The Government relies on United States v. Cota, 953 F.2d 753, 758 (2d Cir. 1992) for the proposition that an agent's confrontation of a suspect with evidence of guilt in response to the defendant's question about the charges against him does not constitute interrogation. In Cota, however, the agent did not expressly "posit the guilt" of the defendant, as did Agent Sullivan and the officers in those cases cited above in which Courts found that officers' statements constituted interrogation. Rather, the agent in Cota simply "supplied the defendant with general information regarding the crime she was suspected of committing, in response to her own questions." Cota, 953 F.2d at 759 (quoting United States v. Guido, 704 F.2d 675, 677 (2d Cir. 1983).
Moreover, the holding in Cota was premised on the Court's finding that the agent did not "create an atmosphere whereby his words or actions were 'reasonably likely' to elicit an incriminating response." Cota, 953 F.2d at 759. The suspect in Cota had been informed of the precise nature of the charges against her. Cota, 953 F.2d at 757. Here, the agents' continued refusal to inform Ramos of the precise charges against him helped to create an atmosphere in which the statement "we know you are a Latin King" would be reasonably likely to elicit an incriminating response. See Glover v. Florida, 677 So. 2d 374 (Fla. Dist. Ct. App. Jul. 10, 1996) (holding that, under Innis, officers' refusal to answer defendants' questions about the charges against him was unduly protracted and evocative such that the atmosphere was tantamount to a custodial interrogation").
Ramos did not waive his rights by asking for information about the charges against him after invoking his rights. The requirement, set forth above, that a defendant must "initiate" discussions with the police in order to waive a previously invoked right is a rigid prophylactic rule that safeguards from police badgering invocations of the Fifth Amendment right to counsel at interrogation, Edwards, 451 U.S. at 484-85, or the Sixth Amendment right to counsel upon the filing of charges, Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986). A similar rule applies where the accused has invoked his Fifth Amendment right to silence. Mosley, 423 U.S. at 104.
Ramos did not, by asking the officers to identify the charges against him, initiate the particular verbal exchange which lead to his statement to the officers. In Oregon v. Bradshaw, 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983), the Supreme Court explained that some inquiries "are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation." Id. at 1046. Because a bare inquiry about the charges underlying an arrest relates "to routine incidents of the custodial relationship," it "will not generally 'initiate' a conversation" for purposes of the prophylactic rules. Id.
Even if Ramos had initiated a discussion by asking about the charges, the Government nonetheless has not demonstrated that Ramos effected a valid waiver of his rights. The circumstances here indicate that Ramos did not intend a waiver. First, Ramos declined to sign the FBI's waiver-of-rights form. Although a "defendant's refusal to sign a waiver form is not dispositive of the issue," United States v. Spencer, 955 F.2d 814, 819 (1992); see North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979), "the refusal to execute a written waiver may be taken as an indication that no waiver was intended or freely given." United States v. Boston, 508 F.2d 1171, 1175 (2d Cir. 1974); e.g., United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) ("Heldt's refusal to sign a printed waiver form casts initial doubt on any claim that he waived his Miranda right. Most persons attach considerable significance to the refusal to sign."). Moreover, although in police custody for over two hours, Ramos did not engage the officers in a generalized discussion of his case, and was completely unresponsive to Agent Sullivan's express questioning between 10:45 and 10:50 a.m.
Finally, because the Government deliberately elicited the statement at issue, Ramos could not implicitly waive his Sixth Amendment right to counsel. "Once formal criminal proceedings begin, the Sixth Amendment renders inadmissible in the prosecution's case in chief statements 'deliberately elicited' from a defendant without an express waiver of the right to counsel." Michigan v. Harvey 494 U.S. 344, 348, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990). This court has already held that Agent Sullivan's exchange with Ramos constitute the functional equivalent of interrogation; Ramos' statement was therefore deliberately elicited. The Government does not contend that Ramos expressly waived his constitutional rights. Accordingly, Ramos' statement is inadmissible.
II. Ortiz's Consent to the Search of Perez's Room Was Valid
Perez contends that the fruits of the warrantless search of his father's apartment should be suppressed, as the search was executed without valid consent and therefore violated Perez's Fourth Amendment rights. Perez contends that: (1) Ortiz did not have the requisite authority to consent to a search of Perez's separate bedroom in the apartment, as well as the closets, closed containers and bed within that bedroom; and (2) Ortiz' consent was not voluntary.
"The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, Eastern District of Michigan, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972). Consequently, the Fourth Amendment embodies a strong preference for search warrants, especially when law enforcement agents seek to enter a private residence. United States v. Ventresca, 380 U.S. 102, 106, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); McDonald v. United States, 335 U.S. 451, 455-56, 93 L. Ed. 153, 69 S. Ct. 191 (1948).
The Government concedes that it did not have a search warrant for apartment 4H, but contends that the search of Perez's bedroom was conducted with the valid consent of Perez's father. The Government bears the burden of proving by a preponderance of evidence that that Ortiz had the requisite authority to consent to the full scope of the search the agents conducted, Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968); United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990), and that the consent was voluntary. United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981).
A. Ortiz Had Authority to Consent to the Search of Perez's Bedroom
In United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974), the Supreme Court held that third party consent would serve as an exception to the Fourth Amendment's warrant requirement only when that third party was shown by the Government to have "common authority" over the specific area to be searched.
"Common authority" was defined by the Court in Matlock as not mere "access," but as "joint access or control [of the area to be searched] for most purposes" and "mutual use" of that "common-area." Matlock, 415 U.S. at 171 and n. 7.
The Court of Appeals has interpreted Matlock as follows:
We have held that a third-party consent will validate the search if two prongs are present: first, the third party had access to the area searched, and second, either: (a) a common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access.