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U.S. v. YOU

February 28, 2002


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:


On the morning of September 7, 2001, several agents from the Immigration and Naturalization Service ("INS") observed Long Huang You at Kennedy airport as he met an illegal alien and drove off with her in his car. That afternoon, the agents located You at his apartment, obtained his consent to search the apartment, and seized documents found during that search. After the search, the agents arrested You for conspiring to smuggle an undocumented alien into the United States in violation of 18 U.S.C. § 371. See Complaint ¶¶ 1-2.

You claims that the September 7th search violated his Fourth Amendment rights and moves to suppress all seized evidence. See 12/6/01 Notice of Motion; see also Affidavit of Long Huang You ("Def. Aff."), attached to 12/6/01 Memorandum of Law by Lawrence A. Dubin, Defendant's Attorney, in Support of Motion to Suppress ("Def. Mem."). An evidentiary hearing was held on January 4, 2002. For the reasons set forth below, the motion is granted.


A. Seizure of a Suspect

The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . ." U.S. Const. amend. IV. "As our [Fourth Amendment] cases make clear, there are three levels of interaction between agents of the government and private citizens" with each level requiring a different degree of justification. United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995). First, the police may initiate a voluntary encounter with an individual and ask questions as long as the person is willing to listen. See Brown v. City of Oneonta, 221 F.3d 329, 340 (2d Cir. 2000). Such an encounter does not constitute a seizure and therefore does not require any justification nor "trigger Fourth Amendment scrutiny unless it loses its consensual nature." Florida v. Bostick, 501 U.S. 429, 434 (1991). Second, the police may briefly detain a person as part of an investigation if they have "a reasonable suspicion supported by articulable facts that criminal activity `may be afoot'." United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Third, the police may arrest an individual if they have probable cause to believe that he has committed a felony or a criminal offense in the police's presence. See Atwater v. City of Lago Vista, 121 S.Ct. 1536, 1557-58 (2001). A consensual encounter ripens into a seizure, whether an investigative detention or an arrest, when a reasonable person under all the circumstances would believe he was not free to walk away or otherwise ignore the police. See United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992). "The test is an objective one based on how a reasonable innocent person would view the encounter." Id. (citations omitted).

B. Search of a Suspect or His Property

The Fourth Amendment also "generally requires police to secure a warrant before conducting a search." Maryland v. Dyson, 527 U.S. 465, 466 (1999) (per curiam). Warrantless searches "conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). See also Anobile v. Pelligrino, 274 F.3d 45, 61 (2d Cir. 2001).

"[W]hether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227. See also United States v. Mendenhall, 446 U.S. 544, 557 (1980). "[T]he ultimate question presented is whether `the officer had a reasonable basis for believing that there had been consent to the search.'" United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (citing United States v. Sanchez, 32 F.3d 1330, 1334-35 (8th Cir. 1994)). See also United States v. Lavan, 10 F. Supp.2d 377, 384 (S.D.N.Y. 1998). "Recent Supreme Court decisions emphasize . . . that the issue of reasonableness is to be measured by an objective standard." Garcia, 56 F.3d at 423. When determining "objective reasonableness," the Court must ask: "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991) quoting Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990)). "Of course, this objective standard does not preclude an assessment of the particularities of the situation that [are] presentes in any given case. On the contrary, it is still the totality of the circumstances that must be considered." Garcia, 56 F.3d at 423.

C. Burden of Proof

Once a defendant establishes a basis for a suppression motion, the government must prove that the search was proper by a preponderance of the evidence. See Mendenhall, 446 U.S. at 557; United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974); Bumper v. North Carolina, 391 U.S. 543, 548 (1968); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983).


On Friday, September 7, 2001, Special Agents John Morris and Ernst Florvil were assigned to the INS's anti-smuggling unit. See 1/4/02 Transcript ("Tr.") at 10, 66. Around three o'clock that morning, Agents Morris and Florvil went to Kennedy Airport after having received information that a Chinese woman, who had illegally entered the United States, would be flying to the airport to met You. See Tr. at 10-11, 31, 67. At the airport, Agent Morris located the Chinese woman and followed her as she met You. See id. at 11, 34, 67. The agents followed You as he drove the woman towards New York City but they lost him in Brooklyn due to heavy traffic. See id. at 11-12, 34, 67.

At approximately 2:30 p.m., Agent Morris received a phone call from an informant who told him that You and his wife were, at that moment, in a lawyer's office in lower Manhattan. See id. at 12, 35-36, 67. Agent Morris and another agent went directly to the office, found You and his wife, and followed them by foot to Chinatown. See id. at 12, 35. You and his wife entered a building located at 60 Henry Street but the agents could not follow them inside because the front door had closed and locked by the time they arrived. See id. at 12, 35. The agents then instructed another informant to call their office if ...

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