The opinion of the court was delivered by: Denise Cote, District Judge
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.
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. ...