The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Defendant Luis Valentine is charged with possession of drugs with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and unlawful possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). Before the court is defendant's motion to suppress the drugs recovered from his car, drugs and guns recovered from his apartment, and several post-arrest statements. For the reasons set forth below, defendant's motion to suppress is denied in its entirety.
The court held a two-day hearing on September 13 and 27, 2005,*fn1 at which the government presented five witnesses: United States Drug Enforcement Agent Christopher Banzer ("Agent Banzer") and Special Agent Robert J. Yoos ("S.A. Yoos"), New York City Police Department ("NYPD") Detectives Michael Johnson ("Det. Johnson") and Paul Crockett ("Det. Crockett"), and NYPD Sergeant Allan Hoehl ("Sgt. Hoehl"). All were assigned to the Drug Enforcement Agency ("DEA") office housed at John F. Kennedy International Airport ("JFK Airport"). Annette Morales ("Morales"), who lives and has a child-in-common with defendant, testified on his behalf. The defendant did not testify.
The court finds all of the government's witnesses credible and credits Morales' testimony only to the extent that it corroborates the testimony of the government's witnesses. Otherwise, the court finds Morales' testimony incredible.
On October 8, 2004, a shipment of fifty (50) kilograms of cocaine, concealed in a sofa and loveseat, arrived at the Federal Express ("FedEx") facility at the JFK Airport in the Eastern District of New York. The shipment was addressed to Luis Lebron at 377 Vernon Avenue, basement level apartment, Brooklyn, New York. DEA agents intercepted the delivery at JFK Airport and planned a controlled delivery of the sofa and loveseat. (Tr. at 14-15.)
On October 11, 2004, a field team of DEA agents attempted to execute the controlled delivery. Agents were posted at various locations in the vicinity of 377 Vernon Avenue. (Tr. at 63.) Inside a surveillance van parked across the street from 377 Vernon Avenue, agents used video and audio equipment to record the activity in the immediate vicinity of 377 Vernon Avenue before, during, and some time after the attempted controlled delivery.*fn2 (Tr. at 17.)
In the early afternoon of October 11, 2004, Agent Banzer and NYPD Detective Rodney Perez ("Det. Perez") attempted to deliver the sofa and loveseat. Posing as FedEx couriers, they arrived in a truck at 377 Vernon Avenue, a multi-level residential building with a basement level apartment. (Tr. at 15-16.)
Once outside of the truck, Agent Banzer observed defendant get out of a white Ford Taurus parked several feet away from 377 Vernon Avenue. Agent Banzer saw defendant signal to another person down the street and heard him yell "Paolo"*fn3 to a man later identified as Pedro Rodriguez, as if to let him know that FedEx had arrived. (Tr. at 19, 69.) Then, another individual, who identified himself only as "Angel," approached Agent Banzer and Det. Perez. (Tr. at 20.) Angel had a protracted discussion with Det. Perez about the delivery during which Angel used his cell phone to call someone purporting to be Luis Lebron. Angel handed his cell phone to Perez. Meanwhile, defendant entered and exited 377 Vernon Avenue and walked towards his white Ford Taurus. (Tr. at 21, 41.)
Ultimately, no one signed for the delivery and Agent Banzer and Det. Perez got back inside their truck. (Tr. at 25, 27.) Before leaving, Det. Perez walked up to the doorway of 377 Vernon Avenue. Defendant, who lives in the second floor apartment of 377 Vernon Avenue, answered the door. Det. Perez engaged defendant in a conversation, but this conversation was not recorded, and Agent Banzer could not testify as to its sum and substance. Agent Banzer and Det. Perez left the scene at approximately 12:20 p.m. (Tr. at 45, 47, 56.)
Surveillance After the Controlled Delivery
After the controlled delivery failed, S.A. Yoos, a DEA special agent with twenty years of experience, continued to patrol the area in an unmarked car. Det. Johnson, a seven-and-a-half year veteran of the NYPD, continued to monitor the area from the surveillance van parked across the street from 377 Vernon Avenue. Both men observed several individuals standing around on Vernon Avenue. They saw defendant walking on Vernon Avenue and observed some unidentified males, who until then had been waiting at various spots along and across the street, converge on and follow the defendant through a fence and into a vacant lot. The videotape shows defendant in conversation with these individuals. Neither S.A. Yoos nor Det. Johnson were able to observe what transpired in the lot. However, several minutes later, S.A. Yoos and Det. Johnson saw defendant walking alone on Vernon Avenue, a beverage in hand. S.A. Yoos and Det. Johnson testified that, based upon their training and experience, defendant's conduct, together with the surrounding circumstances, led them to believe that defendant had engaged in the sale of narcotics. (Tr. at 93-95.) Their testimony is corroborated by the videotape in evidence. See Gov't's Ex. No. 2.
Valentine's Arrest and the Search of his Car
At approximately 1:30 p.m., Sgt. Hoehl and Det. Crockett arrested defendant, as he stood near the rear of his white Ford Taurus. They approached defendant from different directions, displayed their shields, and identified themselves as police officers. Upon being informed that he was under arrest, defendant violently struggled-at one point reaching for Sgt. Hoehl's gun. Members of the field team assigned to the surveillance van poured out of the van to assist Sgt. Hoehl and Det. Crockett in the arrest.
After the agents and officers subdued and arrested the defendant, Det. Johnson searched defendant's white Ford Taurus for weapons and contraband. He recovered several glassines of heroin from a grey sweatshirt he found in the front passenger seat of defendant's car. (Tr. at 169, 204.) This was the same grey sweatshirt defendant had been wearing when he was observed earlier by S.A. Yoos and Det. Johnson.
The Search of Valentine's Apartment
S.A. Yoos, Sgt. Hoehl, and Det. Crocket proceeded to defendant's second floor apartment at 377 Vernon Avenue. (Tr. at 99, 220, 239; 260-261.) Morales, who was still in her sleepwear, answered the door. S.A. Yoos identified himself and his two companions as federal agents and police officers and informed Morales that they were "working on a narcotics case." He explained that he did not want to talk to Morales in the hallway and asked for permission to enter the premises. Morales appeared nervous but calm and told them to come into the apartment. No weapons were drawn, no voices were raised, and no threats were made. (Tr. at 99, 220-221, 243, 247, 250, 261.)
Accounts of what happened next significantly differ. According to the government's witnesses, S.A. Yoos informed Morales that defendant had been arrested for narcotics violations and asked for her assistance. When Morales denied that there were any drugs or guns in the apartment, S.A. Yoos asked for permission to search the apartment. Morales agreed to allow the search. S.A. Yoos then produced a Consent to Search Form ("Consent Form"),*fn4 read it, explained the purpose of the search, and asked her to sign it. She agreed and signed the form. Thereafter, the apartment was searched. While agents searched the apartment, Morales continued to deny that there was any contraband in the apartment until the agents recovered ammunition. Morales then admitted that there were guns in the bedroom and directed the agents to the weapons. The search lasted about an hour. (Tr. at 99-101, 104-105, 197, 220-221, 243, 247, 250.)
According to Morales, the Consent Form was produced only after the search was conducted and after one of the agents, presumably S.A. Yoos, misled Morales about the purpose of the search. Morales contends that S.A. Yoos claimed to be searching for two individuals the agents allegedly had seen leaving her apartment prior to the agents' arrival. According to Morales, S.A. Yoos did not explicitly ask to search for any contraband and the search lasted for about six hours.
The agents, totaling five, recovered, inter alia, a sawed-off shotgun, two handguns, and heroin bags from the bedroom.*fn5 Morales was ...