Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



January 14, 1997


The opinion of the court was delivered by: HECKMAN




 Defendant is charged with multiple violations of the Federal Controlled Substances Act. Defendant moves to suppress evidence obtained as a result of a warrantless search of the defendant's home. For the reasons set forth below, this motion should be denied.


 A suppression hearing was held on this motion on September 18, 1996. Two witnesses testified for the government and no witnesses testified for the defense. Following the hearing, the court directed the parties to submit briefing. Oral argument was heard on November 20, 1996. The decision was taken under advisement at that time.

 The first government witness was Special Agent Bruce Johnson. He testified that he went to the defendant's home in Amherst, New York to execute an arrest warrant on May 17, 1995. He and various other agents arrived at the residence at approximately 8:00 a.m. The defendant was in his bedroom upstairs sleeping. Agent Johnson as well as Agent O'Connell and Trooper White where led upstairs to defendant's bedroom by defendant's parents.

 The agents were dressed with their raid jackets identifying their various law enforcement agencies. Agent Johnson asked the defendant if he had any drugs. He said, "No." Then Agent Johnson asked the defendant if it was okay to search and he said, "Go ahead, there's nothing here." The defendant denied having any weapons, but stated that he did have money in the dresser. As Agent Johnson was questioning the defendant, Trooper White looked inside the dresser and said that the defendant had quite a lot of money in the dresser. Johnson explained to the defendant that he would seize it and that the defendant could take it up with the case agent when the case was processed. Trooper White also asked the defendant if the black Lexus in the driveway was his. He indicated that it was. The defendant gave permission to search the car and denied that he had weapons or money in the car. He also explained that the money in the dresser came from a 401k account.

 On cross examination, it was established that the bedroom was approximately 10' x 10' and had a number of people in it. It was very crowded when the consent was given. No Miranda rights were given in the bedroom, and the agents did not have a search warrant.

 Johnson's purpose in the initial round of questions was to protect the safety of the agents. Even if the defendant had refused their request to search the bedroom, Johnson testified that they would have searched the dresser because it was within the defendant's grabable area.

 The second witness to testify was Trooper Jeannie Marie White. She participated in the arrest in Amherst. She was in uniform and in a marked car. The defendant's mother took the agents to the bedroom where the defendant was sleeping. The defendant was sitting on the edge of the bed. The dresser was within reach of the defendant. Trooper White advised the defendant that the agents had an arrest warrant and he had to come with them. No Miranda warnings were given. Someone handed the defendant his clothes at the end of the bed. Agent Johnson asked the defendant if he had any drugs and he said no. Agent Johnson asked the defendant if he minded if the agents looked around the room and he said no. As soon as the defendant stated that it was okay to search the room, Trooper White looked into the dresser drawers and found a brown paper bag which contained a large amount of money. It was approximately $ 10,000. Meanwhile, Agent Johnson continued to question the defendant as to whether he had any weapons or money in the house. The defendant said that he took the money out of a 401k.

 Trooper White also found keys on the dresser. She asked if these were his car keys and he said they were. The defendant denied having anything illegal in the car. The defendant also gave permission to search the car. In the car, she found a small bottle of green vegetable matter believed to be marijuana and a glass pipe in the glove box. Defendant was in the car while it was being searched. The defendant was read his rights after he was placed in the trooper's car.

 As to the search of the dresser, Trooper White testified that she would have sought a search warrant if the defendant refused to give permission to search the room and that she was concerned about officer safety.


 The record in this case clearly establishes that Agent Johnson and Trooper White obtained the defendant's consent to search first the area within his bedroom and later his vehicle. The defendant argues that this consent was not voluntary given the small room in which the defendant was present, the fact he had just been woken up, and the presence of three to four armed officers in his room, at least one of whom was in uniform. It is well established that whether a consent to search is voluntary "is a question of fact to be determined from the totality of the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (226) (1973). No single factor is determinative and the officers do not need to inform the person of the right to refuse consent. Schneckloth at 226. Furthermore, it is possible to obtain consent after a person has been arrested and placed in custody and prior to being advised of Miranda rights. United States v. Lemon, 550 F.2d 467, 472 (9th Cir. 1977). It is clear that a consent to search is not the type of incriminating statement toward which the Fifth Amendment is directed and therefore the Fifth Amendment analysis does not apply when the voluntariness of the consent to search is at issue. Miranda protects the Fifth Amendment privilege against self-incrimination, not the Fourth Amendment prohibition against unreasonable searches and seizures. United States v. Faruolo, 506 F.2d 490, 495 (2d. Cir. 1974). Indeed, a valid consent to search may be given even after the Miranda right to remain silent has been exercised. United States v. Busic, 592 F.2d 13, 22 Note 6 (2d Cir. 1978).

 Considering the circumstances in this case, I conclude that the defendant's consent was voluntary. Although it is true that the defendant was in a small room, had just been woken up and was surrounded by police agents, there are no other circumstances present which would indicate that the consent was coerced. For instance, there is no claim that the consent was obtained by deceit or false statements. Furthermore, the defendant promptly advised the agents as to the location of the money, indicating that he was thinking clearly at the time and capable of responding to questions. There is no proof in this case that he was under the influence of any drugs or that the agents' conduct was such as to overbear his will. Accordingly, I conclude that the consent was voluntary under all the circumstances. This included the initial consent to search the room and the subsequent consent to search the car.

 Furthermore, a search of the dresser was justified as a search incident to the arrest. This exception to the search warrant rule permits the police to search a lawfully arrested person in areas within his immediate control. Smith v. Ohio, 494 U.S. 541, 543, 108 L. Ed. 2d 464, 110 S. Ct. 1288 (1990)(per curium). The reason for this exception is to protect the officers and to insure that the subject does not have access to a weapon or destructible area. United States v. Perea, 986 F.2d 633, 643 (2d Circ. 1993). Here, the record clearly supports the proposition that the dresser was in the immediate control or grabable area of the defendant. The officers therefore were legitimately concerned about the presence of weapons in that dresser and were entitled to search.


 For the foregoing reasons, defendant's motion should be denied.

 Respectfully submitted,


 United States Magistrate Judge

 DATED: Buffalo, New York

 January 14, 1997

 Pursuant to U.S.C. ยง 636(b)(1), it is hereby

 ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

 ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).

 The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Patterson-Lietch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).

 Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

 The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.

 Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the government and the defendant.



 United States Magistrate Judge

 DATED: Buffalo, New York

 January 14, 1997


© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.