important divergences. Angel Delgado, defendant's nephew,
indicated that when the first group of officers (Boldis, etc.)
arrived, he and Maria Camacho, mother of defendant's child,
pointed the officers to defendant's father, Jacinto Ramirez, as
the person who lived in the apartment, but the officers instead
focused their questioning on Serrano. (Tr. I, 160-61). In
conflict with the officer's account, Camacho and Virginia
Ramirez, defendant's mother, indicated that these officers spent
twenty minutes talking to Serrano, and that when they overheard
the officers' voices coming through the closed door they sounded
"aggressive" and "loud." (Tr. I, 111, 149). Delgado testified
that he heard the officers through the closed door of the
apartment stating that they would be back with a search warrant.
(Tr. I, 161-162).
Camacho stated that after her conversation with the officers,
Serrano seemed under the impression that the officers had a
search warrant. (Tr. I, 111). When she asked Serrano whether she
had seen the warrant, Serrano answered "no." (Tr. I, 112). She
then advised Serrano to ask the officers to show her the warrant.
Serrano went back into the apartment and the officers present
told her that the warrant was "on its way." (Id.).*fn11
Virginia Ramirez also said that the officers told the family that
they were going to get a search warrant. (Tr. I, 149).
Serrano testified that she went to the apartment upon learning
of defendant's arrest. (Tr. II, 7-8). There she was approached by
two officers who said that they would be back in several hours
with a search warrant. (Tr. II, 10, 62). Serrano indicated that
when different officers returned several hours later, producing a
piece of paper for her to sign, Serrano asked if she could leave
the apartment to speak with Ramirez's parents. (Tr. II, 12, 63).
She was told that she was only signing the consent form as a
witness to the search, and therefore did not need to consult
them. (Tr. II, 12). Serrano admitted that there was no mention of
a search warrant at any time during the search or when she was
handed the consent form to sign by Horne. (Tr. II, 75). She
explained that she thought the document was a search warrant
since that was what she was told they would bring the first time
they came. (Tr. II, 12, 70). Serrano could not remember if she
asked the officers whether the document they presented her with
was a search warrant. (Tr. II, 25). She also did not recall
whether Horne read the consent form to her. (Tr. II, 68).
Serrano testified that she skimmed the consent form, signed it,
and put down the 946 Anderson Avenue address as her own, even
though she was living in Manhattan with her family at the time.
(Tr. II, 13, 15, 46-47, 69). She testified that she informed the
officers of this fact, but that they told her to write down the
946 Anderson Avenue as her own since she had spent the prior
night there. (Tr. II, 15, 64). She indicated that she sometimes
stayed at the apartment on weekends, and generally, the only
clothes that she kept in the apartment were those she brought
with her then. (Tr. II, 47-49). However, during the entire week
prior to the arrest she had stayed in the apartment to care for
the defendant, who had recently been shot. (Tr. II, 48, 73). She
confirmed that there was a picture in the bedroom stating "Elsie
and Tony forever." (Tr. II, 51).
Serrano agreed that the conversation with the officers was
calm, without threats or raised voices, (Tr. II, 65-66), but
asserted that she was nervous and confused when she signed the
consent form, and did not know what was going on. (Tr. II, 15,
65). She denied telling any of the officers that she feared the
defendant or that she feared reprisal if it was revealed that she
had talked to the officers. (Tr. II, 17).
Serrano stated that before she signed the consent form one
officer was already searching in a closet behind the
door,*fn12 and that the officers proceeded into the bedroom as
soon as she had finished signing the consent form. (Tr. II, 72).
Serrano indicated that she did not assist in the search, but she
did follow them as they proceeded through the apartment. (Tr. II,
The government bears the burden of proof when a defendant
challenges a consent to a search. See Bumper v. North Carolina,
391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The
government must show by a preponderance of the evidence that (1)
the party who gave permission to conduct the search had the
requisite authority to consent to the full scope of the search
conducted, see United States v. Matlock, 415 U.S. 164, 171,
177, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and (2) given the
totality of the surrounding circumstances, that the consent was
voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The court first considers defendant's contention that Serrano
did not have authority to consent to a search of the apartment. A
third party can give authority to search an area only when that
person has "common authority" over the specific area to be
searched. Matlock, 415 U.S. at 171, 94 S.Ct. 988. "Common
authority" means "joint access or control for most purposes."
Id. at 171, n. 7, 94 S.Ct. 988. Interpreting Matlock, the
Second Circuit has explained that a third party's consent to
search is valid when the search meets two criteria: "first, the
third party had access to the area searched, and, second, either:
(a) common authority over the area; or (b) a substantial interest
in the area; or (c) permission to gain access." United States v.
Davis, 967 F.2d 84, 87 (2d Cir. 1992) (citing United States v.
Gradowski 502 F.2d 563, 564 (2d Cir. 1974)). Under this
rationale the Second Circuit has repeatedly upheld searches of
adult defendants' bedrooms and other private spaces where another
occupant of the home consented,
and even where the third party no longer lived in the searched
premises. See, e.g., United States v. Jenkins, 496 F.2d 57, 72
(2d Cir. 1974) (finding that defendant's sister, who occupied one
room, could validly consent to search of defendant's room);
United States v. Trzaska, 859 F.2d 1118, 1120 (2nd Cir. 1988)
(finding that estranged wife could properly consent to search of
At the hearing, Serrano testified that she did not live at the
apartment and that she informed the officers of this fact. She
further testified that she did not remember how the officers
ended up inside the apartment on either of the two meetings.
Serrano's testimony is contradicted by the testimony of officers
Horne, Bauer and Boldis, who attested that Serrano stated that
she lived at the residence, that she and the defendant had a
"common law type" of relationship, and that she invited the
officers inside the apartment on both meetings of May 14, 1998.
(Tr. II, 97). Furthermore, Boldis testified that defendant's
father informed him that Serrano shared the apartment with
defendant, and that the officers could enter the apartment
because the couple had nothing to hide.
Even if Serrano did not in fact have authority to consent to
the search, the officers' conclusion that she had authority was
reasonable under the doctrine of apparent authority. See
Illinois v. Rodriguez, 497 U.S. 177, 185-86, 188, 110 S.Ct.
2793, 111 L.Ed.2d 148 (1990) (holding that a warrantless search
based upon the consent of a third party is valid if the police,
at the time of entry, reasonably believe the third party to
possess common authority over the premises, even if the third
party does not in fact have such authority). According to the
officers' testimony, Serrano opened the door to the apartment and
invited the officers inside, showing that she had both access to
the area and permission to enter.*fn14 Upon entering the
apartment the officers saw her clothes and pictures,
demonstrating that she had a substantial interest in the
premises. At the hearing Serrano confirmed that she had property
at the apartment at the time of the search, that she had stayed
there at least the entire week prior to the arrest, and that
there was a picture over defendant's bed reading "Elsie and Tony
Forever." This evidence, combined with input from fifteen months
of surveillance showing her presence at the premises, made it
objectively reasonable for the officers to conclude that Serrano
had sufficient authority over the premises to consent to a
Even if the court proceeded to the more narrow question of
whether Serrano had sufficient authority to allow the officers to
conduct a search of defendant's personal possessions, (the closet
and dresser drawers where the contraband was found), defendant's
claim still fails. In United States v. Perez, 948 F. Supp. 1191,
1200-01 (S.D.N.Y. 1996) (Sweet, J.), the court found that a
father's entry into his son's unlocked bedroom and removal of a
suitcase from the unlocked closet was sufficient to indicate to
the authorities that he had permission to gain access to the
son's room and the closed containers therein.
According to the officers' testimony in this case, Serrano
accompanied the officers around the apartment and directed the
search: pointing out areas where Ramirez's possessions were, and
where her own were stored.*fn16 No testimony was provided
indicating that any of the closets or dressers were locked or
otherwise secured. Crediting the officers' testimony, the court
finds that Serrano's actions were sufficient to establish her
authority to allow the officers to search the closets and
Defendant next contends that Serrano's consent to the search
should be invalidated because her consent was not voluntary. In
ascertaining whether a consent to search is voluntary the court
looks to the "`totality of all the circumstances'" to determine
whether the consent was "a product of that individual's free and
unconstrained choice, rather than a mere acquiescence in a show
of authority." See United States v. Wilson, 11 F.3d 346, 351
(2d. Cir. 1993) (quoting Schneckloth, 412 U.S. at 227, 93 S.Ct.
2041). There are arguably two moments when consent was given in
this case: during Boldis's meeting with Serrano and during
Horne's meeting with Serrano. The court considers each scenario
Boldis testified that his 4:00 P.M. meeting with Serrano lasted
only five or six minutes, and was conversational in tone. During
this meeting, Serrano indicated to Boldis that she would agree to
a search of the premises. Serrano agreed that the meeting with
Boldis was conversational, but asserted that rather than asking
for permission to search, the officers stated that they would be
back in several hours with a search warrant.
The court credits Boldis's account of the 4:00 P.M. meeting.
Delgado and Camacho's claims that they could tell that Boldis and
his assisting officer were aggressive and loud when they
questioned Serrano is based on what they believe they heard
through a closed door. It does not comport with Serrano and
Boldis's account that the meeting was conversational. For similar
reasons the court accepts Boldis's claim that he never told
Serrano that he was leaving to get a search warrant. Delgado
claimed to hear this statement through a closed door and conceded
that he was primed to listen and remember this statement "as a
typical Puerto Rican," constantly subject to police incursions on
his rights. (Tr. I, 168). Serrano, who testified that Boldis told
her this while inside the apartment also does not seem credible
as she does not remember substantial parts of their interaction.
(Tr. II, 60). Given the totality of the circumstances, it was
reasonable for Boldis to conclude that Serrano had voluntarily
consented to a search.*fn17
The second time Serrano arguably provided consent to search the
apartment occurred at approximately 6:00 P.M.*fn18 According
to the officers, Serrano first verbally consented outside the
apartment, and then signed a consent form inside the apartment.
The consent form clearly stated that she had a right to demand a
search warrant, that she could refuse to consent, and that she
could revoke her consent at any time. (Gov.Ex. # 3). Both Serrano
and the officers testified that the meeting was conversational
and nonthreatening and that the officers never demanded or forced
Serrano to let them search.
Serrano agreed that she signed the consent form, but testified
that she thought she was signing as a witness to a search.
Serrano conceded that no one told her the consent form was a
search warrant, nor did she mention her confusion to the
officers. Serrano testified that she asked permission to seek
counsel from defendant's parents, but Horne denied this fact.
Based on the above facts the court finds that it was reasonable
for the officers to consider Serrano's verbal and written consent
voluntary. The police acted with neither intimidation nor force,
and the court credits Horne's testimony that Serrano was not
refused the counsel of defendant's parents before signing the
consent form. Although Serrano may arguably have thought she was
signing a witness form, she did not effectively communicate this
information to the officers. Ultimately, the law only requires
that an officer's conclusion be objectively reasonable, not that
it be correct. See Florida v. Jimeno, 500 U.S. 248, 251, 111
S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("The standard for measuring
the scope of a suspect's consent under the Fourth Amendment is
that of `objective' reasonableness — what would the typical
reasonable person have understood by the exchange between the
officer and the suspect?" (citing Rodriguez, 497 U.S. at
183-189, 110 S.Ct. 2793)). While the defense correctly points out
that the officers failed to articulate to Serrano her right to
refuse consent, this right was clearly presented to her on the
consent form that she read and signed. See United States v.
Tucker, 57 F. Supp.2d 503, 513 (W.D.Tenn. 1999) (finding fact
that third-party signed consent form to be an objective
indication that her consent was voluntary). Moreover,
Schneckloth squarely holds that knowledge of a right to refuse
consent is only one factor to consider in determining the
voluntariness of consent, and the "prosecution is not required to
demonstrate such knowledge as a prerequisite to establishing a
voluntary consent." See Schneckloth, 412 U.S. at 249, 93 S.Ct.
While the officers may have acted reasonably, they did not act
with good judgment. Nothing in the record indicates that the
officers would have had any problem securing a search warrant for
the apartment during the four hours between defendant's arrest
and the time that the consent form was signed. It has long been
established that when law enforcement agents wish to search a
private residence, the preferred method under the Fourth
Amendment is through a search warrant. See McDonald v. United
States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153,
(1948). Indeed, Boldis's actions are particularly egregious since
he put the consent operation in motion. Boldis testified that he
believed Serrano to be nineteen when he met her. In fact, she had
only recently turned eighteen. In any event, Boldis was presented
with a frightened teenager living with a violent boyfriend. His
fellow officers' testimony indicates that Serrano repeatedly
stated that she feared for her safety. Logic dictated that he
presume that Serrano's boyfriend would not look kindly upon her
cooperation with the police. Yet, Serrano was encouraged to sign
the consent form and was then left to her own defenses amongst
the defendant's family. While this surprising lack of good
judgement does not invalidate the court's conclusion that the
search was valid, it does invite censure.
Given these findings, defendant's motion to suppress the
evidence from the consent search is denied. In this case, the
facts indicate that Serrano acted with authority, or at a minimum
with apparent authority, to consent to the search, and the
government has met its burden to show that the consent the
officers secured from Serrano was voluntary.
IT IS SO ORDERED.