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UNITED STATES v. LAVAN

July 2, 1998

UNITED STATES OF AMERICA, against JOSEPH LAVAN, Defendant,


The opinion of the court was delivered by: KAPLAN

MEMORANDUM OPINION

 LEWIS A. KAPLAN, District Judge.

 The Court here is asked to determine whether the warrantless entry into and search of an apartment were justified, respectively, by exigent circumstances and voluntary consent of one of the occupants. It concludes on the basis of the hearing record that the warrantless entry violated the Fourth Amendment and that the subsequent consent was tainted by that entry. As the government has demonstrated persuasively that the evidence inevitably would have been discovered absent the unlawful entry, however, the motion to suppress the articles seized in the apartment is denied.

 Facts

 At approximately 1:30 p.m. on January 21, 1998, police and FBI agents responded to the scene of a reported bank robbery at the Citibank branch on Broadway near 207th Street in Manhattan. They soon learned that the bank had been held up by a man with a gun, obtained a description, and were told by at least one witness that the perpetrator had left the scene and entered an apartment building around the corner at 570 Isham Street.

 Officers immediately went to 570 Isham Street and encountered a woman who told them that she worked as a health care aide for an older woman *fn1" who resided in apartment 5D, that she had just left that apartment, and that a man answering the description of the bank robber had entered the apartment moments before and gone into the bathroom to change his clothes. She further informed the officers that the man had not done so upon entering the apartment on prior occasions. Officers located the building superintendent, who informed them that a man named Joe fit the description of the bank robber and sometimes stayed in apartment 5D. *fn2"

 Police then went to apartment 5D at about 2 p.m. or shortly thereafter and knocked on the door. A woman, whom they eventually learned was Martha Mattai, came to but refused to open the door. Thus began a stand off that lasted until the police forced their way into the apartment at approximately 8 p.m.

 Over the entire six hours of the confrontation, police repeatedly banged on the door and telephoned Ms. Mattai in an effort to persuade her to open the door. They told her that they believed that Joe was in the apartment with her, which she repeatedly and falsely denied, *fn3" and that they could not leave until they were satisfied that she was safe. She protested that she was fine, that the officers were harassing her, and that they should leave. The officers informed her that they could not leave until they saw her and could see that she was okay. *fn4"

 As Ms. Mattai's state of mind, particularly as it appeared to the officers, is significant here, it is important to note that the tapes of the telephone exchanges demonstrate that she was determined, shrewd and very much in possession of her faculties, although her anger and annoyance also were apparent. *fn5" When the officers first asked about "Joe," they mistakenly identified him as "Joe Duffy." Ms. Mattai seized on this to deny that there was any Joe Duffy in the apartment, continuing to deny that "Joe Duffy" was present even when the police specifically inquired about "Joe Lavan." Moreover, in one revealing exchange, Ms. Mattai manifested knowledge of her legal rights and insistence upon their observance:

 
"MARTHA: Yeah, now they're, they're banging at the door. I know. They're trying to open the door by force.
 
"[OFFICER]: I don't know if they're gonna do that.
 
"MARTHA: They're not supposed to open no door by force, you know that Tony. I know the law.
 
"[OFFICER]: Well they . . . they may have to. You know?
 
"MARTHA: If they don't have a warrant they cannot do it, Tony.
 
"[OFFICER]: No, you know, it may be an emergency situation. It's becoming . . .
 
"MARTHA: It's not an emergency Tony.
 
"[OFFICER]: It could be.
 
"MARTHA: Stop it, okay? You're not talking to a fool.
 
"[OFFICER]: I'm not saying you're a fool, Martha.
 
"MARTHA: I know the law." *fn6"

 Over the hours during which these fruitless exchanges with Ms. Mattai took place, police pursued two courses in parallel. They sought to secure the apartment and obtain better information about what was going on inside, and they pursued the investigation of the bank robbery. They evacuated the apartments above, below and adjacent to 5D. Specially trained officers used a long pole to break a window in the living room of the apartment and lowered a video camera to a point outside the broken window, thus permitting them to observe a portion of the apartment. Other officers removed the lens from the peephole in the apartment door and inserted a device that permitted them either to hear or see what was going on in the apartment's hallway. More than fifty officers and agents came to the vicinity of the apartment, surrounded the building and blocked egress from the apartment into the hallway. Nevertheless, despite the substantial number of police, high-tech equipment, and heavy weapons on the scene, the situation was not secure, even apart from the risk presented by Ms. Mattai's presence in the apartment. The apartment opened onto a fire escape, which in turn gave access to a number of occupied apartments. For safety reasons, police were not stationed on the fire escape throughout the encounter, so the armed perpetrator in the apartment might have been able to enter an occupied apartment via the fire escape and endanger the occupants or take them hostage.

 The investigation, meanwhile, proceeded apace. At 3:30 or 4 p.m., law enforcement officers learned that the "Joe" believed to be in 5D was the defendant, Joseph Lavan. *fn7" A photograph was obtained and a photo array constructed. At about 4 p.m., two plastic bags of money were thrown from the apartment window. *fn8" At about 7:30 p.m., one of the witnesses to the robbery identified Lavan from the photo array as the bank robber. The detectives communicated this information to officers on the scene and to the United States Attorney's office, with which they had been in touch throughout the day. *fn9" An Assistant United States Attorney thereupon (1) authorized a warrantless arrest of the suspect, (2) began preparing an application ...


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