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August 19, 2003


The opinion of the court was delivered by: Jed Rakoff, District Judge


Defendant Justice Taylor moves to suppress a shotgun recovered by New York City police officers during their warrantless search of his home.*fn1 The Government concedes the officers lacked probable cause to search but alleges that Taylor consented to the search, which Taylor denies.

Determining the accuracy or inaccuracy of this claim of consent has proven difficult, for even though the Court, in addition to reviewing numerous written submissions and oral arguments, conducted two separate evidentiary hearings, most of the witnesses who testified proved unreliable. For example, one of the three police officers who testified had sworn to a materially false complaint regarding his knowledge of this case, and a second had recorded materially false entries in his [ Page 2]

notebook regarding his whereabouts on the day in question. Conversely, several of the five defense witnesses who testified materially contradicted each other. Indeed, in the end, after a very careful review of the testimony and the Court's still-vivid recollection of the varying demeanors of the witnesses as they testified to various events, the Court reluctantly concludes that none of the witnesses was entirely accurate in what he or she recounted and that several were sufficiently lacking in credibility as to make it impossible for the Court to rely on their testimony except in the most cautious and circumspect fashion (as, e.g., when an otherwise unreliable witness admitted something favorable to his adversary and unfavorable to his own position).

Nonetheless, after sifting through this morass of dubious testimony and after assessing demeanor, drawing inferences (sometimes negative), and weighing probabilities, the Court concludes that what actually occurred is, more likely than not, the following:

Around 11 p.m. on December 4, 2002, in a housing project in the Bronx, several New York City police officers were searching for the assailants in a fatal shooting that had occurred earlier that evening. Transcript, July 1, 2003 ("Tr. I"), at 5-6. Sergeant Brian Branigan, the Anti-Crime Supervisor in the 43d Precinct, arrived on the scene with a team of plainclothes [ Page 3]

officers. Tr. I at 6-13, 109-10, 166. Upon learning that the shooters were seen fleeing in the general direction of Seward Avenue, Sgt. Branigan, acting on a hunch that a reputed gang member named Douglas Thomas might be involved, went with other officers to what Sgt. Branigan understood was Thomas's last known address, apartment 3D at 1682 Seward Avenue. Id.

In fact, however, Thomas was not there; instead, it appears, he was incarcerated. Tr. I at 12, 27-28; Transcript, July 29, 2003 ("Tr. II"), at 33, 208-09. The apartment was leased to Mrs. Gladys Taylor, age 72, and her son Justice Taylor, age 47. Tr. II at 30, 47, 208. At the time Sgt. Branigan arrived, Mr. Taylor was conversing in the living room with three friends, Harold Utsey, Dana Samuels, and Louise James, while his mother dozed in a back bedroom, her adopted 15-year-old son Angel washed dishes in the kitchen, and Justice Taylor's niece and her newborn child slept in a second bedroom. Tr. I at 184, 197-98, 209, 212-13; Tr. II at 32, 37.

Sgt. Branigan knocked loudly on the door while four plainclothes officers and at least two uniformed officers stood to his side. Tr. I at 13; Tr. II at 35. After ascertaining it was the police, Justice Taylor opened the door. Tr. II at 32-33. As he did so, at least some of the officers had their hands on their weapons, and several may have had them drawn. Tr. II at 33, 35, 36, 40-41; Tr. I at 206. [ Page 4]

Sgt. Branigan announced that there had just been a shooting in the neighborhood and asked whether the police could look around the apartment "to make sure everything is all right." Tr. I at 91; see also Tr. II at 34. Taylor responded: "Let me go make sure it's all right with my mother." Tr. I at 92, as corrected in Tr. II at 65-66; see also Transcript, July 17, 2003, at 5-6; Tr. II at 34, 46-47. Taylor then turned away from the door and began walking toward his mother's bedroom. Tr. I at 92-94. Although the door remained somewhat open, Taylor did not open it wider or indicate with his body language that the officers should enter. Tr. II at 46, see also Tr. I at 17.*fn2

Nevertheless, after Taylor turned away and started down the hallway toward his mother's room, Sgt. Branigan and Officers Edward Herrera and John Ferrara followed after him without his permission and even without his being aware, initially, that he [ Page 5]

was being followed, Tr. II at 42; Tr. I at 92-95. As he followed Taylor, Officer Ferrara looked into the first bedroom on his left, the door to which was open, and allegedly saw the barrel of a shotgun sticking up between a night table and the bed. Tr. I at 94-96, 98-99.*fn3 This was the gun that was seized.

Meanwhile, the remaining officers entered the apartment and commenced an intrusive and somewhat belligerent search of the other occupants and the premises. Tr. I at 184-88, 198-99; Tr. II at 33, 36-37. Although nothing suspicious was observed except the shotgun in one bedroom, Sgt. Branigan, without further inquiry, then ordered the arrest of all the occupants of the entire apartment except the three who were in bed, charging them with criminal possession of a weapon. Tr. I at 24-25; Gov't Ex. 3504-B. For example, Louise James, age 38, a homemaker without any prior criminal record, who lived upstairs and was simply socializing with Taylor in the living room, was arrested and detained for three days before being released. Tr. I at 195, 199-203. Ultimately, charges were dropped against all the arrestees except Taylor. [ Page 6]

The police officers' uninvited entry into Taylor's apartment was not "a de minimis intrusion that may be disregarded," Maryland v. Buie, 494 U.S. 325, 334 (1990), but rather was a "`physical entry of the home[,] . . . the chief evil against which the wording of the Fourth Amendment is directed,'" Payton v. New York, 445 U.S. 573, 585 (1980). Such warrantless intrusions are per se unreasonable unless they fit one of "a few specifically established and well-delineated exceptions," such as valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Although officers may infer consent "from an individual's words, gestures, or conduct," United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981), such inferences must be objectively warranted and reasonable, Florida v. Jimeno, 500 U.S. 248, 251 (1991); United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995). Moreover, while the validity of a search does not depend on the recitation of a "talismanic phrase," Buettner-Janusch, 646 F.2d at 764, mere silence or the failure to object does not constitute consent unless the totality of circumstances so indicates, see, e.g., United States v. Jaras, 86 F.3d 383, 390 ...

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