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June 29, 2001


The opinion of the court was delivered by: Gerard E. Lynch, District Judge:


Defendant Jason Jones was indicted on November 28, 2000, on one count of conspiracy to distribute, and possess with the intent to distribute, more than five grams of crack cocaine, in violation of 21 U.S.C. § 846. On May 23, 2001, the Court conducted an evidentiary hearing regarding defendant's motion to suppress a firearm discovered during a warrantless search of his residence following his arrest by law enforcement officers on November 29, 2000, and a nonverbal testimonial statement he made after the officers failed to advise him properly of his constitutional rights, as was required by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), and reaffirmed in Dickerson v. United States, 530 U.S. 428(2000).

For the reasons that follow, the motion is denied.


Three law enforcement officers testified at the hearing; defendant called no witnesses. After evaluating the credibility and demeanor of the witnesses, and the other evidence offered at the hearing, I make the following findings of fact.

Detective Andrew Huber, a fifteen-year veteran of the New York Police Department and, at the time of the events in question, a member of the department's Bronx Narcotics Division (Tr. 3-4), testified that on November 29, 2000, at around 6:00 a.m., approximately 7-10 federal and city law enforcement officers arrived at Jones' apartment at 1074 Summit Avenue (#4A) in the Bronx with a warrant to arrest him on narcotics charges. (Id. 6-11, 18, 22.) The arrest raid was part of an operation that targeted approximately 18 people for arrest that day in the area surrounding the Highbridge housing projects. (Id. 5-6.) Huber, pretending to be an employee of New York City's Bureau of Child Welfare, had previously entered the apartment on a "reconaissance" mission to ascertain its layout and learn how many individuals could reasonably be expected to be present at the time of the raid. (Id. 7-10.) When they arrived at the apartment to effect the arrest, Huber and the other officers were aware, based on statements made "months before" by a confidential informant, that Jones had illegally sold firearms to the informant in the area around his apartment. (Id. 6-7, 9, 33, 46.) Believing (based on Huber's observations on his earlier visit) that a young child probably resided in the apartment, members of the raid team planned to question inhabitants about whether firearms were stored there. (Id. 9, 42-43.) The government, however, did not obtain a search warrant in advance of the raid. (See, e.g., id. 40-41.)

Defendant's apartment consists of a central living room, located to the left of the entranceway, with an adjacent kitchen. Two bedrooms (left and right) are located to the rear of the living room. (Id. 11.) On November 29, 2000, the officers, all of whom were carrying firearms and wearing bulletproof vests and blue jackets (id. 22-23), knocked at the front door and announced their presence to Hodell Cromer, defendant's father. After being informed that the officers had an arrest warrant for Jones, Cromer led them down a hallway to the right bedroom, where they discovered defendant (who had apparently just awakened). (Id. 11-12.). The officers handcuffed Jones outside of the bedroom (id. 14), and Huber, after telling him that he was under arrest, informed him that "you don't have to talk to me; you have a right to a lawyer, but I know there are guns in the apartment, tell me where they are." (Id. 13.) Huber also testified that he "implor[ed]" Jones to make a statement about the putative firearms "so nobody gets hurt." (Id.) At no time during his interrogation of Jones did Huber unholster his firearm. (Id. 17.)*fn1

As Huber and Milione were questioning defendant, some of the other team members, including Special Agent Edward Segar of the DEA, converged on Shirley Jones (defendant's mother) and a small child, who were located in the left bedroom. Segar conducted a "quick" security sweep of the room while holding his firearm. After completing the sweep, he holstered the weapon and spoke to Ms. Jones, who was somewhat "flustered" by the massive law enforcement presence in her apartment. (Id. 74.) Segar asked Ms. Jones if her name "was on the lease" for the apartment. She said it was. Segar then asked if he and the other officers could "look[] around." (Id.) Ms. Jones orally consented, stating that there "was nothing to hide, nothing in the apartment, no drugs." (Id. 75.) Approximately two minutes elapsed between the officers' entering the apartment and Ms. Jones' oral consent to search. (Id. 77.) Segar immediately communicated news of the consent to other members of the arrest team. (Id. 77-78; see also id. 66.) At some later point, an unidentified officer handed Ms. Jones a consent to search form. (Id. 78; GX 3.) Jones agreed to execute the form, and did so in the presence of Agent Milione. (Tr. 63-64.) During a subsequent search, the officers discovered additional firearms. (Id. 66.)

The sequence of these events is not completely clear from the testimony. Apparently, Huber and Milione were talking to Jones in his bedroom at the same time that Segar was speaking to Jones' mother in hers. None of the officers clearly recalled whether Segar's announcement that Ms. Jones had consented to a search preceded or followed the discovery of the Tec 9 in the living room. However, Segar testified that Ms. Jones gave her oral consent "within two minutes of the time he entered her room. (Id. 77.) Huber and Milione, in contrast, described their interrogation as a lengthier process, in which defendant was cajoled to agree to reveal the location of the firearm while he rose and dressed. It is clear that the written consent form was not signed until after the Tec 9 was found, though it is less clear whether the signing preceded or followed the seizure of other firearms.


I. The Firearm

Warrantless searches are presumptively unconstitutional. See, e.g., Maryland v. Dyson, 527 U.S. 465, 466-67(1999) (per curiam). Such searches are nevertheless lawful under a variety of circumstances. Among these, it is well established that a person may consent to a search if the consent was "freely and voluntarily given" under the "totality of all the surrounding circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 222, 226(1973) (internal quotations omitted). Factors that courts consider in assessing the voluntariness of a consent include the individual's age, intelligence and educational background, the length and nature of the questioning and whether the law enforcement officials engaged in coercive behavior. Id. at 226-27.

The government first contends that Jones himself consented to a search of the couch. (G. Br. 25-26.) But the testimony about what Jones did and said is quite minimal. According to Huber, after extensive efforts to persuade him to reveal the location of the gun for the safety of his family, Jones said "all right," and then "led [Huber] back into the living room area to the vicinity of the couch, . . . stood in front of the couch and nodded towards the couch." Huber asked, "here?," and Jones "again nodded toward the couch." (Tr. 14-15.)

The government argues that defendant's nods in the direction of the couch constitute both a factual statement about the location of the firearm and a consent for the officers to look under the cushions. Defendant argues that telling the agents where the gun was located is not the same thing as consenting to a search that would otherwise not be permitted by the Fourth Amendment. While the government's interpretation is certainly plausible, and there is no doubt on this record that Jones' non-verbal responses — whatever they meant — were voluntary, there is no need in this case to decide whether a nod by an 18-year-old man made in response to a request for information rather than to an explicit request for consent to search is ...

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