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September 21, 2000


The opinion of the court was delivered by: Robert L. Carter, District Judge.


Defendant Juan Ramirez moves to suppress evidence collected during a search of his Bronx residence pursuant to F.R.Crim. P. 12(b)(3), 41(f) and U.S. Const. Amend. IV.*fn1 Defendant alleges that Elsie Serrano, the person who is said to have consented to the search, was not authorized to give consent to search his residence, and further was fraudulently induced to consent.*fn2


A. Pre-Hearing Matters

Initially, defendant filed a motion dated January 13, 2000, to suppress the evidence collected during the search of his residence. (Doc. # 103) ("Schwarz affirmation"). In an endorsement dated February 1, 2000, the court dismissed defendant's motion because the only proof submitted in support of the motion was defendant's prior lawyer, Roger Schwarz's, affirmation, and Schwarz was not present at the time of the search. See United States v. Ramirez, 98 Cr. 0438 (S.D.N Y 2000) (Carter, J.).

On February 14, 2000, defendant renewed the motion to suppress and submitted an affidavit from Elsie Serrano, who was present during the search, in which she adopted most of the factual assertions in the Schwarz affirmation as her own. (Gov.Ex. 2A) ("Serrano affidavit"). Based on these submissions the court set the matter for a hearing, which commenced on July 13, 2000, continued on July 18 and 19, and concluded on July 31, 2000.*fn3

B. Hearing Facts

The government's three witnesses, New York Police Department ("NYPD") Lieutenant Steve Boldis, Bureau of Alcohol Tobacco and Firearms ("ATF") Group Supervisor Laurie Horne, and ATF Agent James Bauer (the "officers") testified to the following facts:*fn4

Ramirez was arrested on May 14, 1998, at 2:00 P.M., outside his 946 Anderson Avenue apartment (the "apartment") in the Bronx. (Tr. I, 6-8).*fn5 He was searched at the time of arrest, and Horne indicated that he was wearing a bulletproof vest and carrying a loaded gun. (Tr. I, 7). Horne took the defendant to the 44th and 50th precincts for processing. (Tr. I, 7-8). Boldis indicated that he saw defendant's relatives, as well as Serrano, gather outside the apartment at the time of the arrest. (Tr. II, 86). Boldis explained that he knew who Serrano was because she had been identified through informants and various forms of surveillance as defendant's live-in girlfriend; surveillance also revealed that defendant kept guns and police paraphernalia in the apartment. (Tr. II, 88-89, 113).*fn6 After returning to the 44th precinct, Boldis discussed the possibility of searching the apartment for contraband, either through a consent search or search warrant, with prosecutors. (Tr. II, 90, 118). Boldis testified that both avenues were plausible, but that he chose to pursue a consent search because it was more time-effective. (Tr. II, 121). Boldis then assigned two detectives from the juvenile crime squad to guard the apartment to prevent the removal of evidence. (Tr. II, 90-91).

Boldis returned to the apartment around 4:00 P.M. the same day with Captain Ferrari, his commanding officer, and two other officers, at which time the common area outside the apartment was filled with defendant's relatives, as well as Serrano and Maria Camacho, the mother of defendant's child. (Tr. II, 91-93). The officers introduced themselves to the family and indicated that they wanted to perform a search of the apartment. (Tr. II, 94). Jacinto Ramirez, defendant's father, stated that he was superintendent of the building, that the basement apartment in the building was provided to him as payment for his work, and that Serrano and defendant were the sole occupants of the apartment. (Tr. II, 95). He also indicated that the officers could search the apartment, that "there is nothing in there." (Tr. II, 94). Boldis replied that only Serrano could consent to a search (Id.).

Serrano invited the officers into the apartment. (Tr. II, 96). Jacinto Ramirez attempted to enter the apartment with the officers, but Boldis asked him to stay outside. (Tr. II, 123). Inside the apartment Boldis informed Serrano that the police wanted to search the apartment for police paraphernalia and other evidence; Serrano agreed to the search. (Tr. II, 96). At this time, Boldis testified that he performed a brief (15-20 second) visual sweep of the apartment, during which he saw several indications that Serrano lived in the apartment: hairbrushes, women's clothing on top of the bed and dresser, and a picture above the bed reading "Elsie and Tony Forever." (Tr. II, 98-99).*fn7 Boldis testified that during this conversation Serrano stated that she was nineteen years old and had a "common law type" relationship with the defendant. (Tr. II, 97, 125).*fn8 Boldis testified that he questioned Serrano for five or six minutes in a "conversational" and "personable" manner, and at no time did he tell Serrano that he would get a search warrant for the apartment. (Tr. II, 96-98). Boldis did not explain to Serrano that the apartment could not be searched without either her consent or a search warrant. (Tr. II, 126). Boldis testified that he did not perform a consent search at that time because the lead officers in the case, including Horne, were absent. (Tr. II, 99).

Boldis then returned to the 50th precinct where he contacted Horne to tell her that Serrano was willing to consent to a search, and that he would meet her at the apartment later in the day. (Tr. II, 99-100). Horne took a "consent to search" form ("consent form") and went to the apartment with Bauer, arriving at approximately 6:00 P.M., at which time they met Boldis and another officer. (Tr. I, 8-9). Horne testified that upon entering the common area she walked up to Serrano, introduced herself, discussed Ramirez's arrest, and asked whether Serrano lived in the apartment. (Tr. I, 10). Horne and Bauer recalled that Serrano was agitated: she stated that she was Ramirez's girlfriend, she lived with him in the apartment, she knew he had been arrested, and she was extremely afraid for her safety, i.e., worried that Ramirez might cause her to suffer retaliation for having spoken with the police. (Tr. I, 11, 73). Bauer further testified that he heard Serrano express fear for her children's lives. (Tr. I, 93).*fn9 Horne requested permission to search the apartment and Serrano agreed, opening the door and inviting the officers inside. (Tr. I, 12). Bauer testified that the officers explained to Serrano the difference between a consent search and a search warrant both during this conversation and once in the apartment. (Tr. I, 72). Bauer and Horne testified that the officers wore their weapons holstered during this exchange, (Tr. I, 13, 85), and that at no time did they order Serrano to let them in. (Tr. I, 12-13).

Sitting at the kitchen table, Horne again requested Serrano's consent to search the apartment, and read the contents of the consent form to her. (Tr. I, 14, 18, 55). Horne did not explain the contents of the consent form, but she did ask Serrano whether she had any questions regarding the form, and Serrano had none. (Tr. II, 19, 55-57, 104). Horne further testified that Serrano appeared to read the consent form, and in response to Horne's inquiries, indicated that she had grown up in the United States and understood English. (Tr. I, 18-19, 75). In the course of the conversation Serrano repeated that she lived in the apartment with the defendant, that she feared that the defendant might harm her, and that she was planning to move out of the apartment that night. (Tr. I, 15-16, 76). Notwithstanding these concerns, she signed the consent form. (Tr. I, 19).*fn10

Horne and Boldis testified that none of the officers present told Serrano that they had a search warrant or were attempting to secure one, nor did Serrano ask any questions about a search warrant. (Tr. I, 16, II, 104). Horne testified that Serrano at ...

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