The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
Valerie and Anthony Miremadi seek to suppress certain documents, seized during the course of their arrests and a subsequent search of their home, on the grounds that the documents were obtained in violation of the Fourth and Fifth Amendments to the United States Constitution. In particular, the Miremadis argue that (1) certain documents seized from their home must be suppressed as fruit of an unwarned custodial interrogation in violation of the Fifth Amendment, and (2) certain other documents must be suppressed because the Miremadis' consent to search their home was not voluntarily given and the documents seized during that search therefore were obtained in violation of the Fourth Amendment.
For the reasons that follow, the motion to suppress documents seized as the result of the alleged custodial interrogation is denied, and the motion to suppress documents seized during the subsequent search of the Miremadis' home is granted.
Anthony and Valerie Miremadi, Paul W. Eggers and G.H. Lincecum were indicted in this Court on September 26, 1997 on charges of conspiracy to commit wire fraud in connection with an investment program involving a couple named Ilse and Herbert Erpel. Arrest warrants and a search warrant for the offices of Eggers and Lincecum issued on May 8, 1997. No search warrant ever was sought or obtained as to the Miremadis' residence or business. Soon thereafter, Secret Service Agent Thomas Atkinson, the case agent, traveled to Los Angeles to arrest Anthony Miremadi and his wife, Valerie. Atkinson was assisted in Los Angeles by fellow Secret Service Agents Jacqueline Marengo, Jack Peterson, and Peter Damos.
On the afternoon in question, the four agents first arrested Anthony Miremadi at his place of business.
The agents read Mr. Miremadi the Miranda warnings and handcuffed him. According to Agent Atkinson, Mr. Miremadi seemed surprised and expressed concern about his three daughters who would be returning home from school shortly.
The agents gathered Mr. Miremadi's belongings and placed him in the back of one of their two unmarked cars. They proceeded next to the Miremadis' home a few minutes away in order to arrest Valerie Miremadi. Once there, Agent Atkinson and Marengo approached the door with guns visible below their jackets, and Atkinson knocked on the door. When Valerie Miremadi opened it, Agent Atkinson announced that he had a warrant for her arrest. Exactly what happened next was the subject of conflicting testimony.
Alleged Custodial Interrogation
All of the witnesses agreed that Valerie Miremadi immediately became very agitated and excited upon being told that she was under arrest and began asking questions of the agents regarding the basis for her arrest. As a result of her agitation, no doubt, the agents failed to follow the standard procedures normally attendant to an arrest. They did not immediately read her the Miranda warnings, nor did they restrain her.
Agent Atkinson testified that, as he explained the charges to her, Ms. Miremadi turned around and began walking into the house.
Although he conceded that he did not know where she was going, what she was doing, or even whether other people were in the house at the time, Agent Atkinson said that he nevertheless followed her into the house, down a short hallway, through the kitchen and a wide-open living room, and finally into an office area in the rear.
Once in the office area, Agent Atkinson recalled, Ms. Miremadi protested her innocence of the charges by voluntarily picking up certain documents and showing them to him.
The first documents she picked up, Agent Atkinson admitted, had nothing to do with the investment scheme he had been investigating, but he seized them from her anyway.
The second item Ms. Miremadi picked up was a green folder containing documents; she held it out toward Agent Atkinson and riffled through the contents within his view. Atkinson testified that he was able to observe the names of investors and other relevant information regarding the investment scheme.
Consequently, he took the folder from Ms. Miremadi and another document he noticed lying on the desk.
Ms. Miremadi protested that she did not give him permission to take the documents, but Agent Atkinson replied that he could take them because they were in plain view.
Ms. Miremadi offered a different account of the events leading up to the seizure of these documents. She contended that after being told she was under arrest, she backed up into the house and that Agents Atkinson and Marengo followed her into the entry way.
At that point, she said, she asked "what it was all about," and Agent Atkinson explained to her that it was a fraud case involving the Erpels.
According to Ms. Miremadi, Agent Atkinson then asked whether she had any documents relating to the Erpels in the house and, if so, whether he could see them.
Ms. Miremadi stated that she replied affirmatively and that only then did she lead the two agents through the house and into the office area.
She said she then handed Agent Atkinson a file marked "Erpels" from a stack of closed files on her desk and, when Agent Atkinson asked to see the other files, she refused, saying she did not think they were relevant to the Erpel investigation.
Ms. Miremadi testified that she then told the agents that she needed to make arrangements for her three daughters, who would be coming home from school shortly. The agents permitted her to do so.
Shortly thereafter, according to Ms. Miremadi, Agent Atkinson sat her down in the kitchen and asked her more questions about her involvement in the investment schemes.
During this conversation, Atkinson allegedly told her that "97 percent of the people that we arrest are convicted," that she was in a lot of trouble, facing a lot of jail time, and would be better off if she cooperated with the investigation.
It is undisputed that Agent Atkinson neither read Ms. Miremadi Miranda warnings nor otherwise advised her of her rights prior to seizing the documents from the office.
Atkinson conceded that he failed to advise Ms. Miremadi of her Miranda rights until some twenty or thirty minutes later.
Atkinson testified that, after he advised her of her rights, Ms. Miremadi asked to speak with an attorney. He said that he told her that it was her right and "didn't ask her any further questions at that time."
Ms. Miremadi then was handcuffed in her house and taken outside to one of the cars. The agents subsequently brought Anthony Miremadi into the house and asked whether he would be willing to sign a consent form.
He stated that he wanted to speak with his wife, so Ms. Miremadi was led back into the house and placed at the kitchen table with her husband.
Agent Damos then read the Miremadis the Miranda warnings and again requested consent to search their home.
Ms. Miremadi responded by asking again to speak with her attorney, and the agents allowed her to call him on the telephone.
Ms. Miremadi's attorney advised her not to give consent to search the house nor to show the agents anything.
The attorney then requested to speak with one of the agents.
Agent Atkinson testified that he got on the phone, and the attorney advised him that he did not want either of the Miremadis to sign the consent to search form or to speak further with the agents.
After Agent Atkinson got off the phone, Ms. Miremadi contended, he remarked, "OK, if that is how you want to do it, that is fine, but it's a big mistake. You are just going to make it harder on yourself. It's just going to be harder this way."
Ms. Miremadi testified also that Agent Atkinson advised her that her school-age daughters would be permitted to enter the house if she consented to a search, but that they would not be allowed back in until a warranted search was conducted, perhaps not for several days, if consent was refused.
According to Ms. Miremadi, Agent Atkinson added that the agents had "enough to get a warrant."
Atkinson admitted that at some point he told the Miremadis that he had already seen lots of evidence of a crime, that there was a possibility the agents would try to get a warrant, and that he would like them to cooperate.
He did not deny having made the statements about when the Miremadi children would be permitted to return to the house. In any case, Ms. Miremadi continued to refuse consent to search the house.
The agents then re-handcuffed the Miremadis and took them back outside to separate cars.
Ms. Miremadi was placed in a car with Agents Marengo and Peterson, while her husband rode in another vehicle with Agents Atkinson and Damos.
About thirty minutes into the ride to downtown Los Angeles, Ms. Miremadi inquired what would happen if the agents obtained the search warrant.
Agent Peterson testified that he told her that the agents would apply for a warrant and that a team of agents would come back and execute it.
He said he told her that the agents would "seal down" the residence until they could come back with a warrant,
although the agents admittedly did not seal the house when they left it, but simply locked the door. Ms. Miremadi claimed she asked how long it would take before her children could get back into the house and that Peterson said it would "probably be a day, maybe two."
In addition to concern about her children's return to their home, Ms. Miremadi was troubled about how a search pursuant to a warrant would be conducted. She asked Agent Peterson whether it would involve mattress slashing, destruction of personal items and so on.
Peterson testified that he told her "in no way would agents do that. . . . A thorough search of the residence, of the entire residence, would be conducted and in no way would we destroy items, mattresses, kick the dog on the way out or anything like that. But I did tell her that she would know that a search was conducted at her residence."
A few minutes after this exchange, and without further conversation, Ms. Miremadi told the agents that she was thinking of consenting to the search of her home and asked whether she could speak to her husband.
The agents pulled off the freeway and permitted the handcuffed Miremadis to converse alone in the back of one of the cars.
After approximately ten minutes, the Miremadis emerged from the car and told Agent Atkinson that they had a few more questions about the consent search.
Ms. Miremadi then raised concerns regarding her children being at the residence during the search, the manner in which the search would be conducted, and her wish to have their computer left at the house.
Ms. Miremadi contended that at this point she "feared that if I did not consent that (a) when the agents came back they would be destructive; (b) the children would be locked out of the house and would be unable [to] get their clothing; and (c) ...