Tr. at 16. Moreover, there is no indication in the record, nor even an assertion by Tavarez, that this case involves any of the situations in which the good faith exception is inapplicable. As such, this case fits squarely within the principle of United States v. Leon. See United States v. Cooper, 1991 U.S. Dist. LEXIS 4551, No. 90 Cr. 514, 1991 WL 60371, at *5 (S.D.N.Y. April 9, 1991) (officers who did not give notice before executing search acted in good faith reliance on no-knock warrant and thus evidence not excluded). Accordingly, even if the no-knock Search Warrant was invalid, the physical evidence seized from Tavarez's apartment would nonetheless be admissible pursuant to the good faith exception to the exclusionary rule.
C. Violent Nature of Search
The text of the Fourth Amendment makes clear that all searches must be "reasonable." The reasonableness requirement of the Fourth Amendment applies not only to the circumstances under which a warrant may be issued, but also to the manner and scope of a search. Ayeni v. Mottola, 35 F.3d 680, 684 (2d Cir. 1994), cert. denied, 514 U.S. 1062, 131 L. Ed. 2d 554, 115 S. Ct. 1689 (1995). Thus, a search that is unduly destructive or invasive in nature may violate an individual's Fourth Amendment rights.
Although Tavarez argues that the violent nature of the search warrants suppression of the evidence seized from his apartment, he falls far short of establishing a Fourth Amendment violation justifying the suppression of evidence. Tavarez has not provided any specific factual assertions regarding the nature and/or consequences of the search. Rather, he conclusively asserts that the police "ransacked the apartment." Tavarez Aff. P 2. As such, this claim is factually deficient.
In any event, even when a Fourth Amendment violation has occurred, evidence will not be excluded unless a causal relationship exists between the particular violation at issue and the discovery of the evidence sought to be excluded. United States v. Clark, 891 F.2d 501, 505 (4th Cir. 1989); see also United States v. Ramirez, 118 S. Ct. 992, 140 L. Ed. 2d 191, 1998 U.S. LEXIS 1600, 1998 WL 88055, at *5, n.3 (U.S. 1998) (recognizing that after finding a Fourth Amendment violation based on the violent nature of a search, the court must then decide whether "there was sufficient causal relationship between the [violent acts] and the discovery of the [evidence] to warrant suppression of the evidence.") In other words, only where the evidence is "in some sense the product of illegal government activity" is suppression warranted. New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990).
Tavarez does not contend that there is any causal relationship between the violent nature of the search and the discovery of the evidence he seeks to have suppressed. In other words, Tavarez does not argue that but for the destructive nature of the search, the police officers would not have found the evidence at issue. Given the absence of such an assertion, Tavarez's claim must fail.
II. Post-Arrest Statements
The Sixth Amendment provides, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. Once an accused has expressed a wish for counsel he is not subject to further interrogation until counsel has been made available to him, unless he himself initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Therefore, the issue of whether Tavarez's Sixth Amendment right to counsel was violated, and thus whether his post-arrest statements must be suppressed, depends entirely on the factual question of whether Tavarez requested an attorney after he was arrested.
The Government claims that at no time did Tavarez request the assistance of counsel. Tavarez, on the other hand, alleges that he invoked his right to counsel at least five times between his arrest and the execution of the waiver of right forms, but was nonetheless interrogated by police officers without an attorney and without having initiated communication. Based on the testimony elicited at the suppression hearing, the Court finds that Tavarez's Sixth Amendment right to counsel was not violated and thus his post-arrest statements need not be suppressed.
Both agents testified that Tavarez was advised of his constitutional rights at least twice, once in the car, and then again at FBI headquarters. Likewise, both agents testified that Tavarez did not request an attorney at any time, and signed the consent to search form and the waiver of rights forms without incident. The Court finds the testimony provided by Agents Higgins and Flores to be very credible. In fact, Flores's testimony is bolstered by Assistant United States Attorney Dan Himmelfarb's handwritten notes taken in preparation for the instant motion. The heading on the single page of notes is "Voice-mail messages from Jose Flores." Under "Message # 2," it states, "Did not ask for atty in apt or in car; Higgins in back seat; Flores did driving." Gov't Exh. "3503."
Tavarez's testimony to the contrary is simply unbelievable. As an initial matter, Tavarez's credibility was seriously called into question on cross-examination by the Government. For example, Tavarez initially denied having signed the waiver of right forms, but after being confronted with his signature on the documents admitted to having executed them. Tr. at 180-81. Similarly, Tavarez claimed to have been at FBI headquarters for "about five hours" before signing the waiver of rights forms. Tr. at 191-92. In fact, however, it is undisputed that Tavarez arrived at headquarters between 9:00 a.m. and 10:00 a.m. and that the waiver of rights forms were executed at 9:40 a.m.
Tr. at 191-92. Moreover, Tavarez's account of the events on December 17, 1995 at the suppression hearing differ significantly from the facts alleged in his sworn affidavit. For example, although Tavarez claimed at the suppression hearing that Higgins threatened to arrest Nunez in order to coerce him into signing the consent to search form, no such facts are included in his affidavit. Perhaps-more indicative of Tavarez's propensity for untruthfulness is the fact that Tavarez admitted that he did not read his affidavit before signing it, but rather "just signed something that [he] was told that [he] was given to sign when [his attorney] told [him] that [he] had to sign." Tr. at 183. Finally, certain testimony provided by Tavarez was simply incredible on its face. For example, Tavarez stated that during the car ride to FBI headquarters, he was alone in the car with Higgins and Higgins drove, while Tavarez was seated in the rear passenger seat. Tr. at 170. Tavarez concedes that the car did not have any protective barrier between the front and rear seats. Tr. at 184. Given the obvious and significant safety risks posed by such Tavarez's scenario, as well as Higgins's testimony regarding his practice of transporting a prisoner, the Court finds Tavarez's testimony on this subject to be less than forthright.
Similarly, the Court gives little weight to Nunez's and Mrs. Tavarez's testimony. Both witnesses testified that Tavarez asked Mrs. Tavarez to get him an attorney in the presence of law enforcement officers. The Court finds Nunez's credibility to be questionable, at best, for two reasons. First, Nunez testified that she had no recollection of reading or understanding her affidavit before signing it. Tr. at 227-29. Second, Nunez admitted to lying under oath in a state criminal proceeding and stated that she "would do it again." Tr. at 232-33. Although Mrs. Tavarez was not directly impeached at the suppression hearing, the Court is skeptical about her testimony as well. Mrs. Tavarez has a personal interest in the outcome of this motion and her statements directly contradict the credible testimony provided by Higgins and Flores.
Accordingly, Tavarez's Sixth Amendment right to counsel was not violated and his motion to suppress his post-arrest statements is denied.
For the reasons set forth above, Tavarez's motion to suppress the physical evidence seized from his apartment on March 9, 1995 and his post-arrest statements is denied.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
March 9, 1998