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May 2, 2003


The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge

Defendant Romanus Isiofia moves to suppress certain statements, including his social security number, and evidence obtained during a search of his apartment. The defendant was indicted on September 18, 2002,*fn1 for using a social security number assigned to him on the basis of false information provided by him in order to obtain payments or other benefits to which he was not entitled,*fn2 possessing a counterfeit resident alien card,*fn3 knowingly producing without legal authority a counterfeit resident alien card and social security card,*fn4 and possessing five or more identification documents and false identification documents.*fn5 The Court received briefs from both sides and held a hearing on April 14, 2003. For the following reasons, defendant's motion is granted in part and denied in part.

I. Facts

On the morning of March 27, 2001, approximately eight or nine law enforcement officers including members of the U.S. Secret Service, the U.S. Postal Inspectors, and the New York City Police Department conducted a "controlled delivery" to defendant's residence in the Bronx where he lived with his wife and five-year-old twin sons He was the only one home at the time. Postal Inspector Andre Esannason, dressed as a letter carrier, after being buzzed into the building by the defendant, delivered a package to a "Robert Heskey." Transcript of 4/14/03 Suppression Hearing [hereinafter Tr.] 6-7. Two other members of the team, Special Agent ("SA") Karen Fontana Graves of the Secret Service and Detective Tony Cruz of the NYPD entered the building and took up positions on the stairwell nearby but out of sight of the defendant's apartment. Tr. 6. The defendant opened the apartment door and the Inspector asked whether he was Robert Heskey. The defendant nodded. Tr. 6-7, 18. After the defendant signed the two package slips, see Gov't Exs. 1 & 2, the Postal Inspector said, "Thank you very much. Have a nice day," which was the signal for SA Graves and Det. Cruz to affect the arrest of the defendant.*fn6 See Tr. 7, 9, 17. Entry into the apartment occurred between 10:15 and 11:00 a.m. Tr. 17 (testimony of Inspector Esannason that the package was delivered at approximately 10:15 to 10:30 a.m.); Tr. 69 (testimony of SA Graves that the delivery was at approximately 11 a.m.); Tr. 48, 51 (testimony of SA Casey McGee that the package delivery was "definitely less than an hour" before 11:30, the time defendant signed a Miranda waiver). The agents did not have a search warrant or an arrest warrant, nor an anticipatory arrest warrant.*fn7 Tr. 12, 14.

SA Graves testified that when she and Det. Cruz approached the defendant, he backed into a small foyer, and they placed him against a wall and handcuffed him. Tr. 69-70. Once the defendant was handcuffed, SA Graves and Det. Cruz placed him at a small table inside the apartment and waited, along with Inspector Esannason, for the other agents to arrive. Tr. 71-72. Someone — presumably Det. Cruz, since neither of the other two officers in the apartment testified that they made such a call — radioed to the other officers, who were waiting outside in a car. Tr. 28. At some point after the defendant was arrested and placed in handcuffs, Inspector Esannason noticed that the signature on the card was that of "T Smith" rather than "Robert Heskey." Tr. 21-22, 26. Inspector Esannason testified that he informed the case agent in charge of the investigation, Special Agent Guida, about this when SA Guida arrived in the apartment. Tr. 21-22, 26. Inspector Esannason left the apartment after five minutes or so to resume his role as a postal inspector. Tr. 24.

When the other agents arrived, SA McGee and SA Guida conducted a "protective sweep" of the apartment. Tr. 29. (However, Inspector Esannason testified that there was no reason to believe that there were weapons or other people in the apartment. Tr. 20.) After the protective sweep, SA McGee came over to the table where the defendant had been situated. Tr. 30. SA McGee asked the defendant's name, and when he could not understand the response due to the defendant's accent, asked if the defendant had any identification. Tr. 30. Defendant pointed to a closed briefcase on the other side of the room. Tr. 30-31. The defendant indicated that this was where the identification was and permitted SA McGee to open it. Tr. 31. Special Agent McGee found a number of identification cards inside, including an alien registration card with the defendant's name and several social security cards with various other names. Tr. 31-33.

According to SA McGee, it was at this point that the agents started to fill out the paperwork contained in the arrest packet, starting with pedigree information required to complete the U.S. Marshals Service's standard Prisoner Intake form, Gov't Ex. 104. Tr. 31, 34; Tr. 72 (testimony of SA Graves). SA Graves testified that it was her decision to take down the defendant's pedigree information in the defendant's living room because "I just felt that I had the paperwork in my hands and I'm sitting across from him and I could take this opportunity to get his basic information. . . ." Tr. 86. SA McGee testified that this decision to proceed in the defendant's living room was made by him and SA Graves because: "There wasn't really a reason to go. It wasn't unsafe in the apartment." Tr. 54-55. SA Graves further testified that such sessions were equally common as off-site pedigree sessions, e.g., at a precinct or in the U.S. Attorneys office. Tr. 86; Tr. 51 (testimony of McGee that pedigree sessions are performed onsite about half the time). Filling out the Prisoner Intake form lasted approximately one-half hour, and the agents procured an unusually complete amount of information from the defendant, including the ages and dates of births of his children, the telephone numbers of most of his relatives, and bank account information. Tr. 77 (testimony of SA Graves); Tr. 36-37 (testimony of SA McGee); Gov't Ex. 104.

After the agents completed the Prisoner Intake form, SA McGee then read and showed the defendant the form which contained the Miranda rights and a waiver of those rights. The defendant signed this form at 11:30 a.m., indicating that he understood and waived these rights. Tr. 41; Gov't Ex. 107. A few moments later, the defendant signed a form that granted his consent for SA Guida and SA McGee to conduct a complete search of the apartment and the defendant's car. Tr. 42; Gov't Ex. 105. On this form, the line that indicates the nature of the contraband or evidence sought is blank. Gov't Ex. 105. Some time later and in an apparent abundance of caution, SA McGee also obtained a second consent to search "the computer located at my home." Tr. 42, 56; Gov't Ex. 106. On this second consent form, no names are filled in but the blank for the nature of the contraband or evidence is filled in with "crime/package delivery." Tr. 58; Gov't Ex. 106. (This consent form also contains several notations in the margins, but SA McGee did not know who wrote them or their significance. Tr. 57-58.)

The three law enforcement agents who testified at the hearing stated that the defendant was generally pleasant and cooperative. Tr. 32-33, 37 (testimony of SA McGee). In particular, SA McGee testified that he spent a considerable part of the day with the defendant and that he was friendly and easy to get along with throughout. Tr. 47. At some point, one of the defendant's hands was freed from the handcuffs, and only one wrist was handcuffed to the table or chair leg. Tr. 33. The agents testified that they detected no alcohol on his breath, and that they were in close proximity to him, nor did they observe any other common signs of inebriation, such as slurred speech, red eyes, wobbliness, incoherence. Tr. 7-9, 20-21 (testimony of Esannason); Tr. 32, 41 (testimony of SA McGee); Tr. 74, 77-78 (testimony of SA Graves). However, both Secret Service agents testified that they saw a bottle of beer in the apartment. According to SA McGee, the bottle was half-empty and "normal size," although he appeared later to concede that the bottle may have been a forty-ounce one. Tr. 45, 61. Special Agent Graves testified that the bottle was clear glass and three-quarters full. Tr. 78, 82. The agents neither saw nor looked for any other bottles. Tr. 83.

At the hearing, the single witness for the defense was the defendant's wife, Marcy Orji. She testified to the defendant's alcoholism in general and to what he had to drink that morning before she left at about 8:00 or 8:30 a.m. Tr. 89-90, 94, 96. She stated that he arrived home from driving a taxi cab at approximately 4 a.m. She knew this because she had the keys to the house and he had to buzz her to get in. Tr. 95. She further testified that he was carrying two forty-ounce bottles of malt liquor in a bag, one of which he then proceeded to open and drink, while watching television from a seat on the couch. Tr. 96. She testified that he regularly — i.e., apparently every day — drank six to eight such bottles and that he always drank Private Stock, which is a brand of malt liquor that comes in a green bottle. Tr. 90. Ms. Orji testified that malt liquor has a greater percentage of alcohol by volume than beer. Tr. 93. She then went back to sleep and woke up again at 7:00 a.m. Tr. 106. The twins left for school around 7:30 and she left the apartment at around 8 or 8:30. Tr. 95, 106, 112. She testified that they had an argument about his drinking, while at the same time she explained that a package from Victoria's Secret would arrive that day or over the next few days and that he should sign for it if it arrived. Tr. 97. The testimony showed they constantly argued about his drinking and that she threw him out of the apartment as a consequence. Tr. 97-98, 100-01. They apparently reconciled — at least partially, although he sleeps in another room — for the benefit of their twin sons. Tr. 117.

The defendant's affidavit in support of his motion attested to his being a recovering alcoholic and that he drank approximately 100 ounces of malt liquor over approximately two hours that morning. Isiofia Aff. ¶¶ 3-4. He stated that he started to drink that morning after he returned home from driving a gypsy cab and after driving his children to school. Id. ¶¶ 2, 4. He stated that someone rang the buzzer to his apartment and identified himself as a deliveryperson with a package. Id. ¶ 5. He stated that he was asked if this was apartment 2H and told to sign, and he did, at which point "the deliveryman pushed open my door, and five or six other people rushed into my apartment and began yelling at me." Id. ¶¶ 6-7. He was handcuffed to the dining room table while the people searched the apartment. Id. ¶ 8. He stated that he was threatened with jail and deportation if he did not grant them consent to search the entire apartment. Id. ¶ 9. Prior to being informed of his Miranda rights, he was asked which of several social security cards found in the apartment was his, and he told them. Id. ¶ 11.


At the outset of this discussion of the relevant legal issues, it will be helpful to highlight certain key facts: The agents performed the controlled delivery at some time between 10:15 and 11:00 a.m. The government had neither an arrest or search warrant. Once Inspector Esannason gave the pre-arranged signal, two agents immediately entered the defendant's apartment and restrained him. The agents did not request and the defendant did not give consent to enter the apartment. A few moments later, five or six more agents entered the defendant's apartment, two of whom immediately conducted a protective sweep. Shortly thereafter in response to the question whether the defendant had identification, he indicated it was in the briefcase and gave consent to the agents to retrieve and to open a briefcase. At 11:30 a.m. — i.e., between thirty minutes and an hour and fifteen minutes after the agents entered defendant's apartment — the agents first informed the defendant of his Miranda rights and obtained a waiver of those rights. A few moments later, the agents obtained a consent to search the defendant's home and car. Some indeterminate time later, the agents obtained a consent to search the defendant's computer.

A. Suppression of evidence obtained based on defendant's consent to search

In their briefs and arguments at the hearing, the parties framed the issue as whether the defendant's consent was voluntary. Although I analyze the voluntariness of the defendant's consent, I conclude that there is another way to formulate the issue presented by these facts, namely whether the consent was sufficiently attenuated from an illegal entry and search. Under either analysis,*fn8 the evidence obtained pursuant to the ...

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