The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendant Roman Zadiriyev ("Zadiriyev") is one of fourteen defendants charged in a five-count indictment with conspiracy to violate the Hobbs Act, 18 U.S.C. §1951, for alleged participation in a conspiracy to hijack federal express trucks on the west side of Manhattan. Zadiriyev moves to suppress physical evidence, including a handgun, ammunition, and police paraphernalia, recovered by the Government in the course of a search of his apartment that followed his arrest on December 5, 2008. In his moving papers, as well as at an evidentiary hearing held on April 7, 2009, Zadiriyev contends principally that he did not consent to the search. For the following reasons Zadiriyev's motion is DENIED.
On the morning of December 5, 2008 and with a warrant for his arrest but no search warrant, a team of eight FBI special agents and NYPD officers set up surveillance on Zadiriyev's apartment in Brooklyn, New York hoping to arrest him as he exited his home. (Tr. of Apr. 7, 2009 Hrg. ("Tr.") 98: 21-23.) At approximately 2:00 P.M., when had not leftthe apartment, the arrest team approached the front door and knocked. (Tr. 44: 4-6.) Zadiriyev answered the door and FBI Special Agent Peter Casson ("Casson"), identified himself, informed Zadiriyev of the charges on which he was being arrested, and placed Zadiriyev under arrest in the threshold. (Tr. 44: 1-8.) Zadiriyev was then brought a few steps out of the apartment and placed in handcuffs, at which point Casson asked Zadiriyev if he would mind if they moved back into the apartment to avoid creating a "spectacle" for the neighbors. (Tr. 45: 7-9; 64: 2-7.) Zadiriyev agreed. (Tr. 64: 23.)
As Zadiriyev was detained by Casson and another member of the arrest team in the front hallway of the apartment, the balance of the law enforcement officers filed into the apartment to conduct a protective sweep. (Tr. 75: 21-23; 133: 1-14.) As two of the agents headed towards the bedroom at the rear of the apartment, Zadiriyev's wife, Yekaterina Zapravdina ("Zapravdina"), appeared in the doorway to the bedroom. (Tr.100: 1-2.) One of the agents, Dawn Tomazich ("Tomazich"), stopped to speak with Zapravdina as the other, Thomas Duane ("Duane"), continued to conduct a safety sweep of the bedroom. (Tr. 100; 1-4; 142-43.) Once Duane had completed the protective sweep of the bedroom, he and Tomazich spoke with Zapravdina in the bedroom. (Tr. 100: 1-15; 109-110.) The other members of the arrest team concluded the sweep of the balance of the apartment and, having determined that no one else was present, they relayed an "all clear" signal. (Tr. 75: 14-18.)
At this point, accounts of the arrest diverge. At the suppression hearing, Casson testified to the following account. Once the protective sweep was complete, he asked Zadiriyev if the agents could search the apartment and Zadiriyev clearly indicated his consent. (Tr. 75: 23-25; 77: 19-21.) Casson then presented Zadiriyev with an FBI form to acknowledge his consent in writing, but Zadiriyev refused to sign it. (Tr. 46: 12-16.) Casson explained that the purpose of the form was to document in writing the consent that Zadiriyev had provided verbally and that if Zadiriyev did not consent to a search of the apartment the agents would apply for a search warrant. (Tr. 46: 17-21.) Zadiriyev responded that the agents would then need to obtain a warrant. (46: 24-25; 47: 1-2.) Casson told Zadiriyev that was fine, but that the agents would need to secure the apartment for a few hours while they applied for a warrant, and if that if Zadiriyev had nothing to hide it would be easier for everyone if he consented to the search. (Tr. 47: 3-10.) Zadiriyev then re-acknowledged his earlier consent by replying to the effect of, "okay, fine, search what you want . . . I just don't want to sign anything." (Tr. 47:11-13.) Special AgentCasson signed the consent to search form that he had shown to Zadiriyev, adding the notation "refused to sign but gave verbal consent." (Govt. Ex. 1; 92: 7-10.) Casson then instructed the arrest team to commence a search of the apartment. (Tr. 92: 11-18.)
On the issue of consent, the account offered by Zadiriyev in a sworn declaration differs substantially. First, Zadiriyev contends that before he was asked to consent to a search an agent approached him and asked questions about an emergency medical technician's badge ("EMT badge") and other items that comprised the contents of Zadiriyev's wallet. (Declaration of Roman Zadiriyev, dated Mar. 28, 2009 ("Zadiriyev Decl."), at 2.) Zadiriyev further states that thereafter he unequivocally told the agents that he did not consent to a search of the apartment and that he refused to speak with the officers without his attorney present. (Id.)
Following his conversation with Zadiriyev, Casson instructed Duane to retrieve a camera, gloves, and evidence bags from his car. (Tr. 133: 23-25; 134: 1-13.) While Zadiriyev remained in the agents' custody in the hallway, Casson searched the living room and Duane searched the bedroom. (Tr. 134: 9-13.) During the search Zadiriyev and Zapravdina spoke in Russian and, according to Duane and Tomazich, after one of the exchanges Zapravdina told the officers to keep searching, but that she would not sign anything. (Tr.116: 3-12; 135: 1-20.) The search ultimately produced the following items, which were seized as evidence: Zadiriyev's wallet including the EMT badge from a table in the hallway, a handgun and ammunition found by Duane in a drawer in a bedside table in the bedroom, a hat and t-shirt bearing police insignias found in a closet in the hallway, three bee-bee guns, two cellular phones, a CB radio, papers containing a list of names and telephone numbers and a NYPD photographic line up sheet. (GX-2.)
Zapravdina's account of the arrest and subsequent search, offered in both a sworn declaration and live testimony, varies from the agents' accounts only in a few discrete respects but suffers from significant deficiencies in terms of credibility. The declaration signed and submitted to the Court bears the name Yekaterina Zadiriyeva, although Zapravdina acknowledged on the stand that she has neither taken nor ever used her husband's surname. (Tr. 152: 15-19.) The declaration also references a memorandum of law in a paragraph Zapravdina attributed to her husband's lawyers and declared that she had never seen the items of evidence shown to her after the search, although she admitted on the stand that she had seen the bee-bee guns before. (Tr. 166-67; 183-84.) In any event, Zapravdina's testimony sheds little light on the central factual question-whether Zadiriyev verbally consented to the search-because although she testified that she never heard her husband provide consent, neither did she hear him refuse it. (Tr. 164: 17-25; 165: 1.) Zapravdina testified that she tried to pay attention to the conversation between her husband and the agents who detained him in the hallway, and that she heard them talking about sports and joking. (164: 9-24.) She did not, however, understand the exchange between Zadiriyev and the agents when they first entered the apartment. (Tr. 178-179.) Zapravdina acknowledges that she spoke with her husband in Russian as the agents conducted their search, contending that Zadiriyev spoke to her to calm her, and told her that the agents did not have a search warrant, that they would leave soon, and that she should sign nothing. (Tr. 162: 1-7.)
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ...."' U.S. CONST. AM. IV. A warrantless search is per se unreasonable unless one of a "'few specifically established and well-delineated exceptions" applies. Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007) (quoting Schnecklothv. Bustamonte, 412 U.S. 218, 219 (1973)).
Zadiriyev first contends that by forcing him to retreat back into the apartment after the arrest, the special agents "manufactured" circumstances that would require a "protective sweep" in the hope of uncovering evidence. (See Deft.'s Post-Hrg. Br. at 3.) A protective sweep is a "cursory visual inspection of those places in which a person might be hiding" to protect the safety of law enforcement officers conducting an arrest, and represents a well-established exception to the general rule against warrantless searches. Maryland v. Buie, 494 U.S. 325, 327 (1990). To be lawful, however, an officer who conducts a protective sweep must have "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[s] the officer in believing that the area swept harbor[s] an individual posing a danger to those on the arrest scene." Id. at 334. (internal citations and quotation marks omitted).
Although the Government may not manufacture or contrive exigent circumstances to conduct a protective sweep that is a pretext for a search for evidence, see, e.g., United States v. MacDonald, 916 F.2d 766, 772 (2d Cir. 1990) (discussing United States v. Segura, 663 F.2d 411, 415 (2d Cir.1981)); United States v. Isofia, 02 Cr. 520 (HB), 2003 WL 21018853 (S.D.N.Y. May 5, 2003), aff'd United States v. Isofia, 370 F.3d 226 (2d Cir. 2004), an arrest outside of a dwelling may justify a protective sweep of the dwelling if the arresting officers have a reasonable belief that dangers lurk in the home. United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990). In such circumstances, a protective sweep is lawful if the arresting officers have a reasonable belief that (1) third persons are inside, and (2) the third persons are aware of the arrest outside such that they "might destroy evidence, escape or jeopardize the safety of the officers or the public.'" Id. (quoting United States v. Vasquez, 638 F.2d 507, 531 (2d Cir. 1980). In Oguns, officers arrested a defendant who was prepared to receive a delivery of heroin in the front yard of the apartment building where he lived. Oguns, 921 F.2d at 445. After noticing an open door to an apartment inside the building and confirming that it was the defendant's apartment, the officers conducted a security sweep of that apartment. Id. at. 445. The Second Circuit held that the ...