United States District Court, Southern District of New York
January 16, 2003
UNITED STATES OF AMERICA,
MOHAMED AMRY, DEFENDANT.
The opinion of the court was delivered by: Denise Cote, District Judge
OPINION AND ORDER
On May 13, 2002, the defendant Mohamed Amry ("Amry") was indicted on six counts with crimes relating to bank fraud, identification document fraud, and access device fraud. The defendant moved to suppress the evidence seized from and statements he made at his home on January 14, 2002. Following a hearing held on October 2, 2002, the parties were advised through an Order of October 4, that the motion to suppress was denied and that an opinion would follow. This is that opinion.*fn1
In his motion to suppress, Amry argues that all the fruits of the entry into his apartment must be suppressed because the officers did not knock prior to entry; he was not advised of his Miranda rights before questioning; and that any consent to search that he gave is invalid because he was traumatized by his arrest, and was told that the search would occur even if he did not give consent. The defendant also argues that his Sixth Amendment right to counsel was violated because he asked for an attorney during the search and the agents continued to search despite his request.
Findings of Fact
At the hearing, two federal agents and the defendant testified. Their testimony and the documentary evidence established the following.
At approximately 7:00 a.m. on January 14, 2002, eight law enforcement agents — six federal agents, one state and one local police officer — arrived at an apartment building in Somerville, Massachusetts, with an arrest warrant for Amry. They were let into the complex by another resident who was coming out at the same time that they approached.
The officers proceeded to the third floor front door of the defendant's apartment. After knocking on the door and announcing themselves, the officers opened the door to the apartment, stepped inside the apartment and again announced their presence. The defendant does not contend that there was any damage to the door or other sign of forcible entry. Although the lights were off in the room that they entered, which was the front living room, the room was backlit by a light in the hallway. The defendant, wearing only a pair of pajama bottoms, was already in the room.
Upon encountering the defendant, Special Agent David Oliver, the ATF agent assigned to the FBI's Joint Terrorism Task Force and in charge of the arrest, informed Amry that he was under arrest. Other agents discovered the defendant's wife and six week old baby in the main bedroom when they conducted a security sweep of the apartment. Amry was then taken into the spare bedroom by Oliver and FBI agent Barry Schrieber. At some point, while in the spare bedroom, Amry was permitted to put on a shirt.
Amry's wife and child were confined by the other agents to the living room. After confirming that Amry spoke, understood and read English, Oliver, in the presence of Schrieber, read Amry Miranda warnings from an FBI form. This occurred approximately five minutes after the officers had entered the apartment.
During this interview of Amry, neither officer was holding a drawn weapon. It is undisputed that all weapons were in the officers' holsters within seconds of their entry into the apartment. Amry initialed each of the separate rights listed on the form, but did not sign the waiver paragraph at the bottom of the form. Amry admitted at the hearing that he had initialed the form and understood the rights as he did so. This admission contradicted his attorney's representation in a letter dated September 25, that his client had no "recollection as to whether the agents read `Miranda' warnings to him" and the defendant's affidavit of September 26, in which he stated that "[a]t no time while the agents were in my home . . . was I informed by them that I had the above-referenced [Miranda] rights."
Amry's principal contention at the hearing is that he was sleeping naked in his bed with his wife and baby, when he was awakened by strange noise in the apartment. When he sat up in his bed, a flashlight was shone in his face. An officer let him put on his undershorts and brought him into the spare bedroom.
After reading the Miranda warnings to the defendant, Oliver asked the defendant if he wanted to tell them his side of the story. Amry responded by asking why he was being arrested. Oliver told Amry that it was because of the defendant's dealings with a "Mr. Meskini" a couple of years earlier. The defendant told Oliver that he did not know anyone named Meskini. Oliver then asked the defendant again if he wanted to tell them his side of the story. The defendant said that he did not know whether he wanted to talk to them or talk to an attorney. Oliver did not ask Amry any further questions about the charges after this point.
Approximately 15 to 20 minutes after entering the apartment, Oliver asked Amry for permission to search the apartment. Amry told Oliver that he would give them permission, and as Amry admitted at the hearing, he added that he had nothing to hide. Oliver informed Amry that he had the right to refuse to consent to the search. The defendant was presented with and filled out a standard search consent form. The defendant initialed each item on the form and signed it at the bottom.*fn2 The defendant was calm and cooperative throughout the process.
At some point during the search, Amry asked if he could speak with his attorney. He was given his rolodex to locate the telephone number and was handed a cordless telephone by the officers. According to Oliver and Schrieber, Amry then told the officers that he thought that it was too early for his attorney to be in the office and decided not to make the call. Amry never told the officers to stop the search or that he no longer consented to the search.
Conclusions of Law
A. Waiver of Miranda Rights
When a defendant objects to the introduction of a statement at trial based on an alleged violation of Miranda v. Arizona, 384 U.S. 436 (1966), the Government has the burden of proving by a preponderance of the evidence that the statement was made after a voluntary, knowing and intelligent waiver of the rights enunciated in Miranda. Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002). For a waiver to be "voluntary," the waiver must have been "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986). Resolution of this issue requires inquiry into "the totality of all the surrounding circumstances," id., including a defendant's background and experience, the conditions of the interrogation and the conduct of the officers. See United States v. Burrous, 147 F.3d 111, 116 (2d Cir. 1998).
For a waiver to be made "knowingly and intelligently," a defendant must have "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran, 475 U.S. at 421. In order to meet this test, however, the accused need not "know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Colorado v. Spring, 479 U.S. 564, 574 (1987). Rather, the accused need only be aware that "he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time." Id.; accord Oregon v. Elstad, 470 U.S. 298, 316 (1985) (noting that "[t]he Court has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness").
Significantly, the waiver of rights need not be explicit. In North Carolina v. Butler, 441 U.S. 369, 373 (1979), the Court held that An express written or oral statement of waiver of the
right to remain silent or of the right to counsel is
usually strong proof of the validity of that waiver,
but is not inevitably either necessary or sufficient to
establish waiver. The question is not one of form, but
rather whether the defendant in fact knowingly and
voluntarily waived the rights delineated in the Miranda
Thus, a defendant can be found to have waived the right to counsel despite refusing to sign a waiver form. United States v. Spencer, 995 F.2d 10
, 12 (2d Cir. 1993).
The motion to suppress the defendant's statements regarding Mr. Meskini is denied. Amry was advised of his Miranda rights, understood those rights, a fact that he admitted at the hearing, and voluntarily waived those rights prior to the interrogation. The defendant's decision not to sign the "waiver" portion of the advice of rights form does not alter the conclusion that he made a voluntary, knowing and intelligent waiver of his rights.
B. Consent to Search
Law enforcement officers may search property lawfully if the owner voluntarily gives consent to the search, and that consent was not the product of duress or coercion. United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). Consent to search must be the product of an individual's "free and unconstrained choice, rather than a mere acquiescence in a show of authority." Garcia, 56 F.3d at 422 (citation omitted). "So long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search." Id. The officials claiming that a search was consensual bear the burden of demonstrating that the search was indeed voluntary. Schneckloth, 412 U.S. at 222; Anobile v. Pelligrino, 303 F.3d 107, 124 (2d Cir. 2001).
The determination of whether consent was voluntary is a fact-based examination of the "totality of the circumstances." United States v. Drayton, 122 S.Ct. 2105, 2113 (2002); Anobile, 303 F.3d at 124. The standard for measuring the scope of consent is that of "objective" reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the person giving consent. Garcia, 56 F.3d at 423. "Thus, the Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for an officer to believe that the scope of the suspect's consent permitted him to conduct the search that was undertaken." Id. (citation omitted).
A person may give consent even if the person is in custody. United States v. Watson, 423 U.S. 411, 424-25 (1976); Garcia, 56 F.3d at 423. The coercion inherent in an arrest does not prevent a person from giving voluntary consent to a search. United States v. Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990). There is no requirement that the person giving consent be informed or understand that he has a right to refuse to consent. Drayton, 122 S.Ct. at 2113; Garcia, 56 F.3d at 424. The lack of an awareness of the right to refuse consent is relevant, however, to the determination of whether any consent to a search was the product of duress or coercion. Id.; Yu-Leung, 910 F.2d at 41. The test for voluntariness is whether the "consent" was the product of "an essentially free and unconstrained choice" or whether the person's will was "overborne and his capacity for self-determination critically impaired." Schneckloth, 412 U.S. at 225.
The defendant contends in essence that he was so distraught by the fact of his arrest and by his wife's anxiety that he could not have given voluntary consent to the search. He further argues that he was coerced into consenting by agents' statements that it would better for him to cooperate with them and that they would search the apartment whether or not he consented to the search.
The defendant's contentions of emotional debilitation and coercion are belied by his own testimony and by his written authorization of the search. The defendant does not contend that the officers ever abused or threatened him or his family. While an early morning arrest in a home would be a shocking and difficult experience for almost anyone, according to Amry's own description of the events, once he was taken into custody he and his family were treated appropriately. The defendant confirmed at the hearing that he had signed the "Consent to Search" form and that he initialed each item on the form. Moreover, he testified that he had told the agents that they could search the apartment since he had "nothing to hide." In short, the defendant has not identified anything that he did or said that would cause a reasonable officer to believe that he was not giving the officers consent to search. Even if the agents had told defendant that they would search the apartment regardless of whether or not he consented — a fact which they contest — this would not invalidate the consent Amry gave to the search. Yu-Leung, 910 F.2d at 41. The Government has shown that Amry's will was not overborne and that reasonable officers would have understood that Amry had consented to the search.
The defendant has asserted that his Sixth Amendment right to counsel was violated when he requested an opportunity during the search to speak with his attorney. This appears to be offered as an additional argument to suppress the evidence seized during the search.
The Sixth Amendment right to counsel attaches at presentment and at indictment, and at any critical stage of criminal proceedings. See Yu-Leung, 910 F.2d at 37. It does not attach at the time of arrest on a warrant issued on the basis of a complaint. United States v. Smith, 778 F.2d 925, 932 (2d Cir. 1985). Even following indictment, the right to counsel does not attach at the point consent is requested to search a defendant's residence. Yu-Leung, 910 F.2d at 39-40. When Amry requested an opportunity to speak with his attorney, he said nothing to indicate to the officers that he was withdrawing the consent to search he had already given. The Government has carried its burden of showing that there was no violation of Amry's Fourth Amendment rights.
Defendant's motion to suppress is denied.