The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Defendants Carlos Peña Ontiveros and Silvestre Rico Beltran move for the suppression of (1) statements made by defendants at the scene of their arrest and while in custody on or about July 23, 2007; and (2) physical evidence recovered from the residence in which defendants were arrested and from the truck parked outside the residence. For the reasons stated below, defendants' motions are granted in part and denied in part.
The indictment in this case charges defendants with conspiracy to distribute narcotics pursuant to 21 U.S.C. § 846, arising out of activity that occurred "in or about July 2007." (Indict. ¶ 1.) Specifically, the indictment alleges that, in furtherance of the conspiracy, defendants participated in transporting approximately seven kilograms of cocaine to the Bronx on or about July 22, 2007. (Indict. ¶ 3(a).)
On November 2, 2007, defendants filed motions to suppress physical evidence and statements made by each of the defendants on or about July 23, 2007. Specifically, Peña Ontiveros moves to suppress (1) approximately seven kilograms of cocaine found in a truck outside 516 Pugsley Avenue in the Bronx, the residence in which the defendants were arrested (the "residence"); (2) statements made to the Immigration and Customs Enforcement ("ICE") agents regarding cocaine trafficking between Texas and New York; and (3) approximately $96,000 in U.S. currency and two kilograms of cocaine found inside a hidden compartment in a closet at the residence. (Peña Ontiveros Motion at 1.) Rico Beltran moves to suppress (1) all written and oral statements made at or subsequent to his arrest on July 23, 2007; (2) any and all "tangible things" seized from him; and (3) "testimony of any law enforcement officers, agents, and all other persons working in connection with such officers and agents, and all persons present at or near the location of the arrest" of Rico Beltran. (Rico Beltran Motion at 4.)
On December 3, 2007, the Court held an evidentiary hearing on defendants' motions. The government called five witnesses: ICE Special Agents Mildred Marin, Stephen Lee, Eric Stowers, and Brian Herbert, as well as Detective Robert Martinez, a member of the ICE Task Force. Defendants called one witness, ICE Special Agent Richard Johnson. Certain other agents were present at the scene of the arrests and/or the ICE office in Manhattan (the "ICE Office"), including Special Agents Michael Alfonso, Carl DeFilippo, Dan Herbst, and Christopher McClellan, but they did not testify. Neither defendant testified at the hearing.
The parties were given until January 4, 2008 to file any supplemental briefs. Both defendants submitted supplemental materials, and the government filed its supplemental opposition papers on January 21, 2008. The Court held oral argument on the motions on February 7, 2008.
A. Suppression of Physical Evidence
As a threshold matter, the government argues that, with respect to the items found in the residence, defendants have not demonstrated the legitimate reasonable expectation of privacy required to make a suppression motion under the Fourth Amendment. (See Gov't Supp. Mem. at 5-7.) Defendants respond that they have established the requisite privacy interest in the premises because they were overnight guests. (See Peña Ontiveros Aff. at 1; Rico Beltran Aff. at 1.)
"The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Mincey v. Arizona, 437 U.S. 385, 390 (1978) (internal citations and quotation marks omitted); see United States v. Kiyunyung, 171 F.3d 78, 83 (2d Cir. 1999). However, "a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81 (1993) (emphasis in original); see also United States v. Paynor, 447 U.S. 727, 731 (1980). As such, an individual challenging the constitutionality of a search bears the burden of demonstrating a legitimate expectation of privacy in the particular area searched in order to proceed in challenging evidence recovered in a search. See Minnesota v. Carter, 525 U.S. 83, 87-88 (1998); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 133-39 (1978); United States v. Watson, 404 F.3d 163, 166 (2d Cir. 2005). A person asserting a legitimate expectation of privacy in the object of a search or seizure must establish two elements: (1) a subjective expectation of privacy in the object, and (2) a willingness on the part of society to recognize that expectation as legitimate. California v. Ciraolo, 476 U.S. 207, 211 (1986).
Where it has been shown that an individual was an overnight guest in a home, that fact alone is enough to demonstrate that the individual had a legitimate expectation of privacy in the premises. Minnesota v. Olson, 495 U.S. 91, 96-97 (1990); see United States v. Snype, 441 F.3d 119, 130 (2d Cir. 2006); Czernicki v. United States, 270 F. Supp. 2d 391, 394 (S.D.N.Y. 2003). However, "that expectation will not always extend to the entire premises." United States v. Osorio, 949 F.2d 38, 41 (2d Cir. 1991). "A guest can not have even a subjective expectation of privacy in those areas of the host's home that are off limits to the guest or of which the guest has no knowledge." Id. (citing Olson, 495 U.S. at 99). Put another way, a defendant cannot deny knowledge or ownership of items on one hand, and claim a privacy interest in them on the other. See Gudema v. Nassau County, 163 F.3d 717, 722 (2d Cir. 1998) (citing United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991) and United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990)); United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987) (citing Rawlings, 448 U.S. at 105); United States v. Cody, 434 F. Supp. 2d 157, 167 (S.D.N.Y. 2006); see also United States v. Cruz, 475 F. Supp. 2d 250, 258 (W.D.N.Y. 2007) ("[The defendant] cannot distance himself from any connection to the locked refrigerator while simultaneously arguing that he had a reasonable expectation of privacy in its contents.").
Here, the evidence establishes that defendants were overnight guests in the residence. Both have claimed that they were guests of the owner in their affidavits, and Rico Beltran expressly asserts that he was an overnight guest. (Peña Ontiveros Aff. at 1; Rico Beltran Aff. at 1.) The agents entered the residence and the arrests were made in the early morning hours of July 23, 2007, a time when most people are asleep. (See Transcript of December 3, 2007 Hearing ("Tr.") at 142-43; 274-75, 332.) One of the defendants was found in bed, and only partially dressed. (Id. at 289, 306.) One of the defendants was seen bringing a duffel bag into the residence, and a duffel bag belonging to Rico Beltran was found in the bedroom where he was found. (Id. at 20, 66-67, 101, 234-35.) Furthermore, one of the defendants possessed a key to the residence, which he gave to the agents so that they could lock up the residence when they left. (Id. at 338, 342); see also United States v. Fields, 113 F.3d 313, 320 (2d Cir. 1997). These facts demonstrate that defendants were overnight guests in the residence and thus had a legitimate expectation of privacy in the residence.
In addition, the Court finds that because defendants were overnight guests, defendants' expectation of privacy extended to all of the rooms of the residence, including those in which the agents found some of the challenged evidence - namely, the money counting machine, the plastic baggies, and the scale. (See Gov't Mem. at 2-3; see Tr. at 294-96); cf. Olsen, 495 U.S. at 99 ("It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away or asleep, the guest will have a measure of control over the premises."). As such, defendants have demonstrated a legitimate expectation of privacy sufficient to make a suppression motion with respect to those items.
However, neither defendant has claimed ownership of the items found in the trap, nor made any showing that they knew of the existence of the trap or its contents. Consequently, defendants have not demonstrated a legitimate expectation of privacy in the items found in the hallway trap. See Cody, 434 F. Supp. 2d at 167 (holding that refusal to claim ownership of an item or place results in a lack of standing to object to a search of that item or place); see also Torres, 949 F.2d at 608 ("Neither possession nor ownership of property established a legitimate expectation of privacy unless the party vigilantly protects the right to exclude others."); cf. Gudema, 163 F.3d at 722 (collecting cases in which courts held that even an ownership interest is not enough to demonstrate a legitimate expectation of privacy). Because defendants had no legitimate expectation of privacy in the trap or its contents, they cannot suppress the use of such evidence at trial. See Padilla, 508 U.S. at 81; Paynor, 447 U.S. at 731. Accordingly, defendants' motions to suppress the cocaine and cash found inside the trap are denied.
Defendants next argue that the results of the search of the residence and the truck must be suppressed because (1) neither defendant gave valid consent to the search, and (2) the totality of the circumstances leading up to the consent, if any, was so coercive that any consent must be invalidated. For the reasons that follow, the Court rejects these arguments.
Once a defendant with a reasonable expectation of privacy in the area searched challenges a warrantless search as unreasonable under the Fourth Amendment, the burden is on the government to demonstrate that the search was within one of the recognized exceptions to the warrant requirement. United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993). One such exception to the warrant requirement is a search conducted on consent, in that an individual's consent to a search renders it reasonable. See Snype, 441 F.3d at 130-31 (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973) and United States v. Lewis, 386 F.3d 475, 481 (2d Cir. 2004)); United States v. Yu-Leung, 910 F.2d 33, 40-41 (1990) (citing Schneckloth, 412 U.S. at 219). Furthermore, it is wellestablished that, where there are multiple individuals within a dwelling, the consent of one occupant with authority to give such consent is sufficient to justify the search of the shared premises. See United States v. Matlock, 415 U.S. 164, 170 (1974) ("[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.").
Where the government asserts that an individual consented to a search, the government bears the burden of proving, by a preponderance of the evidence, that the consent was voluntary. United States v. Isiofia, 370 F.3d 226, 230-31 (2d Cir. 2004). Voluntariness is ascertained by an analysis of the totality of the circumstances surrounding the consent. Id. at 231; see also Yu-Leung, 910 F.2d at 41.
In determining whether consent was voluntarily given, courts look to the following non-exhaustive list of factors, including: 1) the youth, lack of education, or low intelligence of the defendant; 2) the lack of any advice as to the defendant's constitutional rights; 3) the length of detention; 4) the repeated and prolonged nature of the questioning; and 5) the use of physical punishment such as the deprivation of food or sleep. See Schneckloth, 412 U.S. at 226 (citations omitted). "Other relevant factors include whether guns were drawn or whether the `consenting' adult was threatened." United States v. Lopez, No. 97 Cr. 483 (RPP), 1997 WL 790582, at *6 (S.D.N.Y. Dec. 24, 1997) (citing United States v. Monsalve, 728 F. Supp. 212, 218 (S.D.N.Y. 1990)). The Second Circuit has stated that "the concept of knowing and intelligent waiver, which is strictly applied to rights involving a fair criminal trial, does not govern in the Fourth Amendment context." United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). Thus, consent need not be knowing and intelligent; "[s]o long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search." Id. (citing Schneckloth, 412 U.S. at 228). Similarly, knowledge of the right to refuse consent is not a requirement to a finding of voluntariness, though it may be a factor in ascertaining whether the consent was coerced. Garcia, 56 F.3d at 422-23 (citations omitted).
While more than a "mere acquiescence in a show of authority" is necessary to establish that consent was voluntarily given, United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993), "the fact that a person is in custody or has been subjected to a display of force does not automatically preclude a finding of voluntariness." Snype, 441 F.3d at 131 (citing United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir. 2004) (holding that use of guns to effectuate arrest and handcuffing of defendant did not render his consent to search his home involuntary)); see also United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987) ("That [the defendant] was under arrest and in custody, or even handcuffed, does not as a matter of law require a finding of coercion."). Indeed, consent to a search has been held to be valid where six federal agents were present in the home and the individual was told that the agents would stay there until a warrant was obtained. See Yu-Leung, 910 F.2d at 41; see also United States v. Calvente, 722 F.2d 1019, 1023-24 (2d Cir. 1983) (consent deemed valid where an individual was told that the officers could obtain a warrant).
Additionally, in order to determine the scope of the action authorized by a consent, courts employ an objective test. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness - what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991); see also Garcia, 56 F.3d at 423 (quoting Jimeno). An analysis of objective reasonableness is governed by the "totality of the circumstances" standard. Garcia, 56 F.3d at 423. If a court finds that, under the totality of the circumstances, it was "objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to [conduct the search that was undertaken]," there is no Fourth Amendment violation. Garcia, 56 F.3d at 423 (quoting Jimeno, 500 U.S. at 249) (alteration in original).
For the reasons that follow, the Court finds that the consent given by Peña Ontiveros to search the residence and the truck was valid, and declines to suppress the evidence recovered therein.
(1) The Search of the Residence
The following facts were elicited at the evidentiary hearing. At approximately 3:00 a.m., following a positive alert given by a trained K-9 unit, and after calling in a marked NYPD unit, the agents decided to approach the residence and conduct a "knock and talk" in order to attempt to obtain consent to search the truck and the residence. (Tr. at 21, 66-67, 105, 272, 274.) The agents who approached the house were dressed in plain clothes, wearing bulletproof vests, some with their badges visible. (Tr. at 23, 51-52, 106-07, 221, 335.) None of the agents present at the residence had their guns drawn at any point.*fn1 (Tr. at 23-24, 51-52, 70, 107, 198, 224, 275.) Some of the agents knocked on the front door, repeatedly announcing their presence in both English and Spanish. (Tr. at 23-24, 107-08, 209, 275, 278.) Agent Marin testified that she was saying things like, "Police, open, please open the door" in Spanish while others were speaking in English. (Tr. at 24.) Some agents also walked to the back of the house and knocked on the back door and windows, using batons and flashlights. (Tr. at 107-08, 209-10, 281.) One of the agents who was at the back of the residence at this time testified that the agents could see through an air conditioning vent that there was an individual in the back bedroom in bed hiding under the covers. (Tr. at 281-84.) The agents tried to communicate with the individual, but he did not respond. (Id.)
After the agents had been knocking for approximately 20 minutes, defendant Peña Ontiveros opened the front door. (Tr. at 24, 109, 284.) Agent Marin, who spoke Spanish, first asked Peña Ontiveros if he spoke English, and Peña Ontiveros responded that he did.*fn2 (Tr. at 23, 47.) Agent Marin then asked Peña Ontiveros in English why he had not answered, given the knocking and verbal inquiries by the agents. (Tr. at 25, 48, 286.) Peña Ontiveros answered that "his friend" had told him not to answer. (Tr. at 25, 50, 286-88.) Agent Marin then asked Peña Ontiveros whether the agents could enter the residence, whereupon Peña Ontiveros replied, "Yes." (Tr. at 25, 50, 286-88.) Agent Marin and other agents then entered the residence. (Tr. at 289-90.) According to the agents who testified, no guns were drawn at any time, and no one was swearing or cursing. (Tr. at 51, 54-55, 70, 107, 287.) Agent Marin also testified that she never heard anyone from inside the residence say that the agents could not come in. (Tr. at 46.)
After Agent Marin and the other agents entered the residence, Agent Marin asked Peña Ontiveros in English if there was anyone else in the residence, and he said yes. (Tr. at 25.) At the same time, other agents conducted a protective sweep of the residence. (Tr. at 72-74, 289-90.) Agent Johnson went directly to the back bedroom, where he found defendant Rico Beltran, whom he had previously seen under the covers in bed. (Tr. at 289-90.) Agent Johnson told Rico Beltran to stay on the bed at that point. (Tr. at 289-92.) He testified that his gun was not drawn. (Tr. at 295.)
Agent Marin testified that, during her conversation with Peña Ontiveros after the agents entered the residence, she asked him, in English, for consent to search the residence. (Tr. at 25, 54.) He provided consent, also in English. (Id.) Agent Marin did not ask for written consent, as she did not have any forms with her for the defendant to sign to provide written consent. (Tr. at 55-56.) She then asked Peña Ontiveros to sit down in the living room. (Tr. at 69.)
The Court finds that, based on the totality of the circumstances, the consent given by Peña Ontiveros to enter and subsequently search the residence was validly obtained. First, the Court credits the testimony of the agents, who were wholly credible and consistent in describing the events leading up to the consent and search. In crediting the agents' testimony, the Court expressly rejects the assertions set forth by defendants in their affidavits, which were not subject to crossexamination because the defendants did not testify. See United States v. Fuentes, No. 07 Cr. 329 (SHS), 2007 WL 2319142, at *4 (S.D.N.Y. Aug. 10, 2007) (crediting the testimony of testifying witnesses over the sworn statement of the defendant regarding whether he gave consent); United States v. Juliano, No. 99 Cr. 1197 (AGS), 2000 WL 1206745, at *3 n.1 (S.D.N.Y. Aug. 24, 2000) (affording less weight to conclusory affidavit submitted by defendant where the court could not assess the defendant's credibility due to his decision not to testify, ...