The opinion of the court was delivered by: John Gleeson, United States District Judge
The defendant Miguel Zubiate has moved to suppress physical evidence seized on June 27, 2008, from 24-49 86th Street, Apartment 2, East Elmhurst, New York. The motion also seeks the suppression of certain post-arrest statements he made that day. In an order dated January 29, 2008, I denied the motion and said that this opinion would follow.*fn1
Based on the evidentiary hearing conducted on January 27, 2009, I make the following findings of fact.*fn2
In late June of 2008, ICE Special Agent Todd Anderson, and other agents working with him, received information from ICE agents in Florida. A courier had been arrested on June 24 after 1.7 kilograms of cocaine were discovered in a Jesus statue, a portrait of the last supper, two jewelry boxes and a mirror that were in the courier's luggage. The courier cooperated, and after a controlled delivery to Marlene Zapata in Orlando, Zapata was arrested. Zapata cooperated as well. She operated what Anderson termed a "remitter" or "trans-ship[ing]" business called Lima Services. Zapata and her employee told the agents in Florida that the items in which the cocaine had been secreted had been directed (by a Daniel Campos) to be sent via United Parcel Service ("UPS") to Henry Ortiz at 24-49 86th Street, Apartment 2, East Elmhurst, New York. A plan was hatched to make a controlled delivery to that address. The delivery would not actually contain the seized drugs; for obvious reasons, Anderson and his fellow agents created a package of such size and weight that it would appear to contain the shipment of drugs. They put a device inside the package that would send them a signal when the package was opened.
Among the other information provided by the Florida agents to the New York agents was the fact that Zapata had sent a package addressed to Ortiz at the same address once before, also at the instruction of Daniel Campos. Specifically, on June 3, 2008, a package was delivered to the address. It had been received, and signed for, by the defendant Miguel Zubiate.
On June 26, 2008, Anderson executed an affidavit in support of an application for an anticipatory search warrant. He informed Magistrate Judge Cheryl Pollak that he and the other agents working with him would make the controlled delivery the following day. He sought permission in advance to search the apartment in question, which the agents had surveilled the previous day, if delivery were accepted. Specifically, he requested permission to search immediately upon the opening of the package and after five minutes of receipt if the package was not opened. Judge Pollak issued the anticipatory warrant at 8:20 p.m. on June 26, 2008.
Between that time and late the following morning, the agents changed plans. They decided not to let whoever signed for the package take it inside the apartment; rather, they were going to arrest that person on the spot. And rather than rely on the springing authorization to enter the apartment that would be conferred by the warrant, the agents decided to seek consent from the arrestee to enter and search the apartment.*fn3
At about 11:15 a.m. on June 27, Special Agent Thomas Acocella, pretending to be a UPS employee, rang one of the doorbells next to the front door of the 24-49 86th Street address. The neighbor in the first floor apartment let him in. The foyer was tiny. On Acocella's left was the open door to the downstairs apartment; to his right was another door. Acocella asked for Henry Ortiz in Apartment 2 and was told by the first floor resident to knock on the other door.
When Acocella knocked on the door to his right, the defendant Zubiate answered it. The door opened directly into the stairway that led to the upstairs apartment. Acocella asked Zubiate if he was Henry Ortiz. Zubiate responded that Ortiz was his friend. At this point the first floor resident interjected that he did not know the defendant's name was Ortiz. The defendant responded that Ortiz was his cousin and was at work.
Acocella asked Zubiate if he would accept delivery of a package for Ortiz. Zubiate agreed to do so and signed for the package. Acocella turned around, which was the signal to his brother agents outside to swoop in and arrest. (The foyer was so small Acocella could hold the door to the outside open as he stood in the doorway to Zubiate's apartment.) Zubiate was still on the threshold of his apartment when Special Agent Michael Szochet rushed in, gun drawn, and after he squeezed past Acocella in the foyer he turned Zubiate around and pushed him down onto the stairs leading up to his apartment. Anderson was behind Szochet and he took over custody of Zubiate, handcuffing him behind his back. After looking up the stairs to see if anyone was there, Szochet turned around and proceeded past Anderson and into the first-floor apartment.
Behind Anderson were Special Agents Ismael Quintana and Hector Colon. They passed Anderson and Zubiate at the bottom of the stairs, ascended the staircase to the upstairs apartment and conducted a security sweep.*fn4 They looked only for people who could pose a threat to the officers and found none.
In the meantime, Anderson asked Zubiate if they could go up the stairs to the apartment. Zubiate answered in the affirmative, and they went up the stairs. Anderson detected a strong odor of marijuana. He asked Zubiate if there were any guns, drugs or people in the apartment. Zubiate said he was alone, but there were drugs, since he was a "weed dealer." Once they were in the apartment, Anderson asked for consent to search it, and Zubiate said yes. He also told the agents where they could find marijuana (under a bed in the master bedroom and in a suitcase near the top of the stairs) and cocaine (in lockboxes in a coat closet). The agents seized about 11 kilograms of marijuana and about 3.2 grams of cocaine in those places, as well as about $4,000 in cash from the lockboxes.
During this same period, Anderson asked Zubiate questions about Ortiz and his whereabouts and took a number of statements from Zubiate about his marijuana trafficking. At about 11:45 a.m., a little more than half an hour after the agents entered the apartment, Anderson finally advised Zubiate of his Miranda rights. Zubiate waived those rights, orally and later in ...