The opinion of the court was delivered by: David G. Larimer United States District Judge
This Court referred all pretrial matters in this case to United States Magistrate Judge Marian W. Payson pursuant to 28 U.S.C. § 636(b). After defendant Torrie Singleton moved to suppress statements and physical evidence, Magistrate Judge Payson conducted a suppression hearing and, by Report and Recommendation dated April 21, 2008, she found that Singleton had been subjected to an unlawful search and seizure in violation of his Fourth Amendment rights. See 2008 WL 1826758.
The magistrate judge made no recommendation at that time as to whether any statements or physical evidence should be suppressed, however. Instead, she conducted a second evidentiary hearing to determine whether suppression was required under the "fruit of the poisonous tree" doctrine as set forth in Wong Sun v. United States, 371 U.S. 471, 479 (1963).
On November 12, 2008, Magistrate Judge Payson issued a second Report and Recommendation, in which she recommended that defendant's motion to suppress be granted, both as to his statements and the physical evidence. 2008 WL 4935401. The government has filed objections to both the April and November Reports and Recommendations, and defendant has responded to the government's objections. The matter is now before this Court for review.
I. The Events of May 19, 2006
On May 19, 2006, at around 9:15 p.m., Officer Kenneth Coniglio of the Rochester Police Department received a call from Rochester Police Officer Robert DiNicola, who told Coniglio "that an individual had called him with some information that an individual that lived at 119 Saratoga Avenue was dealing drugs and that individual was out on the street now, possibly walking towards his house." 2008 WL 1826758, at *2. DiNicola also gave him a description of the suspect's clothing and his current location, which was a store on Lyell Avenue.*fn1
Upon parking his patrol car in an alley near the intersection of Saratoga and Lyell Avenues, Coniglio observed defendant, whose clothing matched the description that Coniglio had been given by DiNicola, walking northbound on Saratoga. Coniglio drove up and parked his car, and he and his partner got out. Coniglio began walking toward Singleton, who stopped walking, whereupon Coniglio asked him, "Do you got a minute?" Singleton responded, "Sure." Coniglio then told Singleton to put his hands behind his back, which he did, and Coniglio conducted a pat frisk for weapons.
During the pat frisk, Coniglio went through his "standard line of chatter," which included a question about whether Singleton was "on probation or parole." When Singleton stated that he was on parole, Coniglio asked Singleton whether he had a curfew, and Singleton replied, "9 o'clock." Id. at *3.
After the pat frisk--which turned up no weapons or contraband--Coniglio asked Singleton for identification, and Singleton gave him a New York State identification card. A records check confirmed that Singleton was on parole, and Coniglio then contacted parole officials, who confirmed that Singleton was in violation of his curfew. Based on that information, Coniglio placed Singleton in the rear of his police car.
Singleton's parole officer, David Galbo, arrived at about 9:40 p.m.*fn2 Suppression Hearing Transcript ("Tr."), Dkt. #76, at 88. Galbo spoke with Singleton, and obtained his consent to search Singleton's apartment. During the search, the officers found a handgun, along with a quantity of marijuana. Singleton seeks to suppress those items.
At about 10:00 p.m., defendant was formally arrested for violating his curfew. He was taken to the Public Safety Building in Rochester and interviewed by Coniglio. After being advised of his Miranda rights, Singleton stated that he understood, and was willing to waive, those rights. He subsequently made a number of incriminating statements during that interview, which he also now seeks to suppress.
II. The Reports and Recommendations
Although familiarity with both Reports and Recommendations is assumed, a brief summary of Magistrate Judge Payson's findings and conclusions will facilitate analysis of the issues before me.
In the April 21, 2008 Report and Recommendation, Magistrate Judge Payson first addressed whether the stop of Singleton, which occurred at around 9:15 p.m. on May 19, 2006, violated Singleton's Fourth Amendment rights. The magistrate judge "agree[d] with the government that ... the encounter [between Singleton and the two police officers on the scene] was consensual" when it began, but she also concluded that "the consensual encounter quickly evolved into a Terry stop" when Officer Coniglio directed Singleton to put his hands behind his back, and patted him down. 2008 WL 1826758, at *7; see Terry v. Ohio, 392 U.S. 1, 30 (1968).
Magistrate Judge Payson next considered "whether the stop was supported by reasonable suspicion to believe that 'criminal activity may [have] be[en] afoot.'" 2008 WL 1826758, at *7. (quoting Terry, 392 U.S. at 30). Although she found that "the informant in this case should be considered credible," id. at *8, the magistrate judge added that there was little information in the record concerning the factual basis for the informant's allegations concerning Singleton, or to corroborate those allegations. Id. at *9-*10. The magistrate judge stated that whether the informant's allegations were sufficient to establish reasonable suspicion to conduct a Terry stop of Singleton was "a deceptively difficult" question to answer," id. at *10, but she concluded that on the facts of this case, there was an insufficient basis to establish such a suspicion. See id. at *10-*12.
Magistrate Judge Payson then held a second evidentiary hearing, and issued a second Report and Recommendation, addressing whether the items seized from defendant's apartment, and the statements that he made during the custodial interrogation following his arrest, should be suppressed as fruits of the unlawful Terry stop and frisk. After reciting the four factors relevant to that determination--the administration of Miranda warnings, the temporal proximity of the arrest and the statements in question, the presence or absence of intervening circumstances, and the purpose and flagrancy of the official misconduct--the magistrate judge found that the only one of those factors that weighed in favor of the government in this case was the last one.
In particular, the magistrate judge noted that although she had determined that the seizure and search of Singleton were unlawful, "the question [was] an extremely close one," and that "[t]he very difficulty this Court faced in reaching its conclusion itself demonstrates that the violation was not a flagrant one." 2008 WL 4935401, at *6. She added that there was nothing in the record to suggest that the officers acted in bad faith, stating, "To the contrary, I find that they acted in the good faith belief that their actions comported with the law." Id.
Magistrate Judge Payson found that the other three factors weighed in favor of suppression. She noted that Singleton had not been read his Miranda rights, or advised of his right to refuse consent, before the officers requested and obtained his permission to search his residence. In addition, the evidence at the hearing indicated that not much time--perhaps thirty minutes--elapsed between Singleton's implicit admission to ...