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August 13, 1998


The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 This matter is before the Court on defendants' motions to suppress physical evidence seized in a search of Lewis' apartment at 1011 East 227th Street in the Bronx following the arrest of Murphy at that address on November 4, 1997 as well as statements made by the defendants during custodial questioning later that day as well as for other relief. This is the Court's decision following an evidentiary hearing held on August 3-4, 1998.


 The broad outlines of the events of November 4 are undisputed. In late October, law enforcement officers learned from a confidential informant that Murphy had offered to sell a .357 magnum and a TEC machine gun with a banana clip, that Murphy had an unidentified cousin who was an unidentified member of the New York Police Department ("NYPD"), and that the cousin was a source of the guns. On November 4, at least eight officers arrived at the subject address early in the morning armed with a warrant for Murphy's arrest, but with no search warrant. After placing a ruse telephone call by which they determined that Murphy was in Lewis' second floor apartment, the officers rang the bell. Murphy answered the door and was told that he was under arrest. The officers then accompanied Murphy up the stairs to Lewis' apartment, placed him in a bathroom, entered Lewis' bedroom and other parts of the apartment, found a photo album and a sawed off shotgun, then obtained execution of consent to search forms by both Lewis and Murphy, searched the apartment, and found a .38 caliber revolver and ammunition. At some point, the officers found a bullet proof vest as well. Both men then were arrested and taken to a BATF office where each signed a Miranda waiver, submitted to questioning, and made statements now sought to be suppressed.

 Not surprisingly, many details concerning the events of that date are hotly disputed in quite material respects. The government maintains that Murphy arrived at the door in a state of partial undress and asked to be permitted to go upstairs to dress, thus justifying the officers presence in the apartment and a protective sweep. It concedes that the opening of the photo album was unlawful as to Murphy, but argues that the shotgun was in plain view and that both defendants gave valid consents to search the apartment. The Miranda waivers, it asserts, were both voluntary and untainted. The defendants, for their part, contend that Murphy was fully clothed when he was arrested at the door, that he neither asked to return to the apartment nor invited the officers in, that the officers in effect forced their way in and searched the apartment without consent, that the shotgun was not in plain view, and that the consents to search the apartment were coerced and, in any event, given after the search had been completed. They argue also that the Miranda waivers were tainted by the illegal entry into and search of the apartment and were coerced.

 The evidence offered by each side is shot through with troublesome inconsistencies and omissions. There is at least one substantial inconsistency between Murphy's hearing testimony and his affirmation *fn1" as well as a material omission from the affirmation that suggests tailoring of his hearing testimony to the accounts given at the hearing by the government witnesses, *fn2" who testified before defendants. In addition, a lynchpin of Murphy's contention that he arrived at the door fully clothed and thus could not have asked to return to the apartment to dress was his contention that he spent the time between the ruse call and the officers' arrival making telephone calls to his mother and girlfriend during which he put on his clothes. His mother testified at the hearing and corroborated Murphy on this point. The girlfriend was not called as a witness, which suggests that she would not have done.

 The law enforcement testimony also was inconsistent or improbable in certain respects. For example, Detective Kercado gave two materially different accounts of the finding of the shotgun in the complaint and the amended complaint, both of which he verified. Detective Kercado and Agent Fredericks gave inconsistent accounts of what occurred when Murphy answered the door, the former claiming that Murphy simply went back upstairs under his own power and free of handcuffs and the latter being confident that Murphy was handcuffed at the door. Moreover, it seems unlikely that the officers would have allowed Murphy, who was suspected of selling weapons from the apartment, simply to return to the apartment unrestrained with the officers following behind, as the officers naturally would have perceived themselves to be in significant danger by doing so. Kercado and Fredericks disagreed also as to whether Murphy initially refused to consent to a search and as to whether the officers threatened to approach Murphy's mother for consent. Indeed, officers who testified at the hearing and before the grand jury were unable to agree whether there was a door on the closet where the shotgun was found in Lewis' room and whether it was open or closed immediately prior to the recovery of the shotgun.

 Having considered all of the evidence, including the demeanor of the witnesses, and bearing in mind also that the government bears the burden of proof on this motion, the Court finds as follows:

 Murphy answered the door a minute or two after the ruse telephone call in a state of partial undress. (Tr. 10-11, 24-25, 28, 43, 58, 132, 152-53, 181) He was handcuffed, taken upstairs in order to permit him to dress, and placed in the bathroom while the officers conducted a protective sweep. (Id. 44-46, 132-33, 154) Two of the officers entered the room in which Lewis was sleeping and woke him while others entered the bedroom occupied the preceding night by Murphy where they seized the photo album. One of the officers in the room with Lewis noticed the stock of the sawed off shotgun protruding into the open door of the closet, investigated, and found the shotgun. (Id. 18-19, 35-37, 114-15, 117, 170-71, 175-76, 178) They arrested Lewis, handcuffed him, took him into the kitchen, showed and explained to him a consent to search form, and obtained his written consent without any controversy or reluctance. (Id. 19-20, 37-38, 55-57, 140-41, 176-77) At or about the same time, other officers took Murphy from the bathroom to his bedroom, explained the consent form to him, and sought his consent as well. (Id. 53-54, 58-59) Murphy initially refused. (Id. 59, 91) The officers then said that they would seek a search warrant, but Murphy refused again. (Id. 59, 91, see 142) When the officers threatened to seek consent from Murphy's mother, who owned the building and resided in the apartment below, however, Murphy relented and signed the consent form. (Id. 59-61, 91-92) The officers then searched the apartment and found the .38 revolver, the ammunition and the bullet proof vest. (Id. 61, 125-26)

 Murphy and Lewis then were taken to the BATF office. Their Miranda rights were explained to them. They each signed a waiver form and subsequently made the statements that are challenged here.


 The Shotgun

 The finding that Murphy answered the door in a state of undress and sought to return to the apartment for his clothes fully justified the officers in accompanying him into the premises and in conducting a protective sweep. *fn3" Once in the apartment, they were entitled to make a protective sweep to ensure that neither Lewis nor anyone else jeopardized their safety. *fn4" The shotgun ...

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