The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Defendant Wenge Casseus is charged with conspiracy to distribute and to possess with the intent to distribute crack and powder cocaine; attempted possession with the intent to distribute crack cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(iii) & (ii)(II) and 18 U.S.C. § 3551 et. seq.; possession and use of a firearm in furtherance of cocaine trafficking crimes in violation of 18 U.S.C. 924(c)(1)(A)(i) & 3551 et. seq; and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) & 3551 et. seq. Before the court is defendant's motion to suppress a firearm that was recovered from an automobile he was using, and certain pre-arrest statements he made to the police. A suppression hearing was held and concluded on August 8, 2007 during which the court took testimony from Detective John McHugh and the defendant. Det. McHugh gave consistent and credible testimony. The court finds defendant's testimony credible to the extent that it corroborates the testimony of Det. McHugh and to the extent indicated below. For the reasons set forth below, the motion is denied in its entirety.
On November 8, 2006, at approximately 7:30 p.m., Stean Aulder was fatally wounded by gunfire outside 1668 Rosalind Avenue in Elmont, New York. (Tr. 8). Nassau County Police officers saw defendant speaking to co-defendant Sakora Varone near the crime scene inside the area sealed off by yellow police tape. (Tr. 59).*fn1 The defendant, who is now 25 years old, later admitted that he had stepped into the crime scene at around 7:45p.m. to inquire into the status of Aulder who was his friend. (Tr. 64). The police asked the defendant where he was going, and he replied that he was going to visit Aulder at the hospital. (Affidavit of Wenge Casseus in Support of the Motion ("Casseus Aff.") ¶ 2). It was raining and the police asked him to come to the police station to answer some questions about Aulder. (Tr. 60). Defendant stated that he was on parole and had an 8 p.m. curfew, but agreed to go to the police station. (Id.) Defendant does not deny that he went to the police station voluntarily.
In the ten-minute ride to the Mineola police station, defendant used his cell phone to call Aulder's brother, who said he would come to the police station with an attorney. (Casseus Aff. ¶ 3). According to the station house sign-in sheet, the defendant arrived at 8:55 p.m. (Gov. Exh. 3500-JEM-3, Pg. 472). Several police officers and detectives questioned defendant briefly about the possessions on his person (Tr. 28, 46) and his ties to Aulder. (Tr. 71). Then defendant waited for about 15-20 minutes for an interview with Detective John McHugh. Defendant acknowledged that, during this time, he was not under arrest and could freely place cell phone calls. (Tr. 58).*fn2
John McHugh, a 32-year veteran of the Nassau County Police, testified that his interview with the defendant took place in the Homicide Squad Office, and began at about 10 p.m. (Tr. 8, 37-38). He explained that he was investigating the shooting of Aulder and wanted to ask the defendant a few questions. The defendant did not object. After several basic questions, Det. McHugh read the defendant the Miranda warnings as a precautionary measure, and the defendant signed a Miranda card at approximately 10:15 p.m. (Tr. 11-13, 32, 74, 88; Gov. Exh. 1). The card indicated defendant's willingness to answer questions freely and voluntarily without talking with a lawyer or having one present. (Gov. Exh. 1). Prior to this interview, Det. McHugh was informed by fellow officers that a large quantity of cocaine was found in the second story apartment at 1668 Rosalind Avenue. (Tr. 13-14). He also had learned from Sakora Varone that the defendant was Aulder's partner in cocaine trafficking. (Tr. 15). He was aware that defendant was on parole for a prior conviction and was carrying, in addition to the two cell phones, approximately $2,000 in cash. (Tr. 12-15). Det. McHugh learned from the defendant aspects of the latter's criminal background including a prior conviction for gun possession and past arrests for marijuana and cocaine charges. (Tr. 13).
The defendant revealed that he had gone to the apartment that afternoon and evening and knew of the large quantity of drugs stored there. (Tr. 13). He indicated that he was there simply to talk and had no involvement with the narcotics. (Tr. 14). Det. McHugh testified that, prior to this point, about one hour into the interview, defendant was free to leave, but he never requested to do so. (Tr. 29-30). After this point, Det McHugh believed he had probable cause to arrest the defendant but did not do so; rather, he continued with the interview. He then asked the defendant how he came upon the crime scene. The defendant's account varied.
First the defendant said that about fifteen minutes before the shooting, he left the apartment to buy a telephone card from a gas station around the corner on Hempstead Turnpike when he learned of the shooting from Sakora Varone and hurried back. (Tr. 15-16). Det. McHugh then asked why it took him fifteen minutes to buy the telephone card in the pouring rain when the gas station was only a block away. (Tr. 60). Defendant initially suggested that the first gas station was out of telephone cards and that he had to go to another gas station before finally admitting that he had in fact left the apartment prior to the shooting in his girlfriend's 1999 Ford Taurus and was driving toward Laurelton, Queens when he received a call from Varone regarding the shooting (Tr. 18). He then drove back and could not get close to the crime scene due to the investigation, so he parked his car on Emporia Avenue, near Sakora's house, one block west of the apartment. (Tr. 19-20, 47).
Upon learning that defendant's car was parked near the crime scene, McHugh requested confirmation from fellow officers. This was done within another half hour, or approximately two hours after the interview began. (Tr. 21). During this period, defendant apparently requested permission to leave, but was denied in his request. (Tr. 77). Det. McHugh then told defendant that the police wanted to search the vehicle (Tr. 23). The defendant stated that nothing in the car would relate to the Aulder shooting and consented to the search. (Tr. 23). Det. McHugh prepared a "Search of Premises/Vehicle Consent" form which states explicitly that consent is given "to enable police officers to search for . . . controlled substances, weapons [and] cell phones." (Gov. Exh. 2; Tr. 24). Det. Defendant read and signed the form. (Tr. 36, 49). McHugh testified that he included weapons and controlled substances on the form after learning of defendant's past arrests. In his testimony, the defendant countered that his consent to search was coerced by the police who threatened to search the car with a warrant if he withheld his consent. (Tr. 50). He gave three different accounts of how the threat was conveyed to him.*fn3 Det. McHugh testified consistently that he alone presented the defendant with the consent form and denied ever suggesting that the car would still be searched if the defendant withheld his consent. (Tr. 26, 33-34, 37-39).
The police search of the car uncovered a loaded Kel-Tec p-11 nine millimeter Luger semi-automatic pistol secreted in the insulation under the hood. (Tr. 44). After the gun was located, the defendant was arrested in the early morning hours of November 9, 2006. He then waived his rights and gave a full confession to Drug Enforcement Administration Agents Norton Cordova and David Wilson and Nassau County Police Department Detectives Carl Re and Mark Garry. (Casseus Aff. ¶ 5). He admitted that he had tried to conceal the fact that he had driven to the crime scene because he did not want the police to know about the car which contained the gun. (Tr. 66-67). He also admitted that the gun was his and knew that possession of such a firearm was a violation of his parole terms. (Tr. 87). He further admitted that he concealed the gun inside the insulation underneath the hood of the car. The car was purchased by his girlfriend who gave him permission to use it. (Tr. 87-88).
Defendant moves to suppress his pre-arrest statements on the grounds that he was not given a Miranda warning at the outset of his questioning by the police and that he was denied access to counsel during his interview. He also moves to suppress the gun recovered from the search of his girlfriend's car.
Miranda warnings are only required where an individual is subject to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966). "Custodial interrogation exists when a law enforcement official questions an individual and that questioning was (1) conducted in custodial settings that have inherently coercive pressures that tend to undermine the individual's will to resist and to compel him to speak (the in custody requirement) and (2) when the inquiry is conducted by officers who are aware of the potentially incriminatory nature of the ...