The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge
The defendant, Bobby Williams, stands accused in a six-count indictment of crimes relating to drug trafficking and drug possession. In the defendant's omnibus motion, he moved to suppress items seized by the police on July 21, 2008, from his person and from a vehicle.
In regard to the defendant's application, a hearing was held on April 21, 22, 23 and 27, 2009. Sergeant Edward McDonald ("McDonald") and Officer Myron Moses ("Moses"), both of the Rochester Police Department, as well as the defendant and Larry Drumgoole*fn1 ("Drumgoole") testified at the hearing. After the close of the hearing, the defendant in essence moved to amend his motion papers to include an application to suppress statements, which application the Court now grants.
The Court, having considered the testimony presented and exhibits received into evidence at the hearing, and having made evaluations regarding credibility, makes the following findings of fact and conclusions of law.
McDonald is employed as a police officer with the City of Rochester Police Department, and has been so employed since 1986. He currently holds the rank of sergeant in the Special Investigations Section ("SIS") and is assigned to the violent crimes team. Prior to becoming a Sergeant, he was a police officer in the narcotics unit and is familiar with how drugs are manufactured, packaged, and sold at the street level in the City of Rochester. During his career with the Rochester Police Department, he has participated in the execution of over a thousand search warrants.
Moses is a police officer with the City of Rochester Police Department and has been so employed for eighteen and a half years. He is currently assigned to the SIS narcotics unit.
At about 8:30 p.m. on July 21, 2008, pursuant to their duties with the Rochester Police Department, McDonald and Moses had occasion to participate in the execution of a search warrant at 59 Chili Terrace in the City of Rochester. The search warrant, which contained a no-knock provision, authorized, among other things, the seizure of cocaine. McDonald, as the supervisor, oversaw the execution of the warrant, was in charge of securing any money recovered, and had the authority to decide who would be charged and with what crimes.
Regarding the actual execution of the warrant at 59 Chili Terrace, Officer Simpson breached the front door and then stepped inside to allow Moses, who had the shotgun, to enter. Then the remainder of the officers assigned to the execution of the warrant, including McDonald, entered 59 Chili Terrace. The officers entered the living room, which immediately opened up into the dining room. A small kitchen was off the dining room, and a small pantry was off the kitchen. In the kitchen were stairs leading down to a basement area. The side door to 59 Chili Terrace was secured by 2x4s, preventing entry into or exit from the residence through that door. Consequently, on July 21, 2008, the only access to the basement of 59 Chili Terrace was through the kitchen.
When he entered into 59 Chili Terrace, Moses observed: An individual identified as Demetri Everett located in the living room/dining room entranceway; two individuals identified as Garrett Martin and Larry Drumgoole*fn2 in the living room; and an individual identified as James Beasley in the dining room/kitchen area. Moses also observed a pitbull, and took control of the dog.
McDonald, upon entering 59 Chili Terrace, smelled an odor, which he had smelled fifteen to twenty times prior to July 21, 2008, and which he recognized to be powder cocaine being cooked into crack cocaine. Based upon his training and experience, McDonald knew that powder cocaine is commonly mixed with baking powder or baking soda, put in water, and then cooked to produce crack cocaine.
In the dining room, a quantity of cash was located. More specifically, on the dining room table was a Timberland shoe box that contained over one hundred thousand dollars in cash.
Inside the kitchen, on top of a counter, there were two bags of suspected powder cocaine. On top of the microwave in the kitchen, was a large cookie-size piece of what was suspected to be crack cocaine, and in a open cabinet, there were several other bags of what was believed to be powder cocaine. There was also a cup with white powder residue in the cabinet, as well as some spoons, one of which was inside the cup, and a baking powder or baking soda box. Additionally, located in the kitchen cupboard was over nine thousand dollars in cash, and over three thousand dollars more in cash was found in the pantry. Moreover, there were several papers and envelopes on top of the stove, and the burner on the front left portion of the stove was turned on. McDonald turned the burner off.
Moses, accompanied by another officer, proceeded from the kitchen down the stairs into the basement. At the bottom of the stairs, with gun drawn, he scanned the area with a light. At first, he did not see anyone, but then, to his right, he observed a male, who was identified as Sean Brown ("Brown") hiding behind some slats of wood. Moses directed Brown to show his hands and, at the same time heard other officers yelling, "police, don't move, let me see your hands, get on the ground." Moses then noticed a second male, the defendant, to his left prone on the floor. (Hearing Transcript ("H.T."), April 23, 2009, at 128. ) When the police announced their presence in the basement, the defendant placed his cell phone, which he had been holding, on the ground.
McDonald followed other officers down the stairs into the basement. The basement itself was fairly small, was not finished, and was dirty and dark. Once in the basement, McDonald saw the defendant, whom he then handcuffed behind his back.
He also observed Brown in a corner of the basement approximately eight feet to ten feet away from the defendant. Near Brown, McDonald saw a white pot with flowers on it, inside of which was a quantity of what appeared to be crack cocaine.
The substances that appeared be powder cocaine or crack cocaine were all field tested, and each tested positive for the presence of cocaine. The combined weight of the suspected powder and crack cocaine found in 59 Chili Terrace was in excess of five hundred grams. Based upon McDonald's training and experience, the estimated value of that amount of powder and crack cocaine as of July of 2008 was over $20,000.
McDonald made the determination that the defendant was going to be arrested and charged with narcotics offenses. In making that determination, McDonald relied upon several factors: First, the quick entry into 59 Chili Terrace, based upon the no-knock warrant, which apparently took the occupants by surprise; second, the size of the house, which McDonald described as a "somewhat smaller house." (H.T., April 22, 2009, at 64; third, the odor of powder cocaine being cooked into crack cocaine which permeated the residence; fourth, coupled with the odor, a burner was turned on the kitchen stove, indicating that crack cocaine was being processed when the police entered; fifth, powder cocaine and crack cocaine in plain view in the kitchen; sixth, the proximity of the basement, where the defendant was found, to the kitchen; and seventh, the large quantity of money that was in the shoe box on the dining room table. Based upon these circumstances, McDonald concluded that the individuals within 59 Chili Terrace, including the defendant, all were involved in drug related crimes, since only those involved in cooking the cocaine, or preparing the product for distribution, or actually distributing it, would allowed into the location out of concern that anyone else might inform the police or attempt to forcibly take the money and/or drugs.
After McDonald made the determination to arrest the defendant, the defendant was brought up to the kitchen, where McDonald searched him. McDonald found money, a wallet, and a set of keys on the defendant's person. As to the keys, McDonald placed them in an evidence bag and, in turn, placed the evidence bag into the evidence kit, which is like a tool box, into which items seized during the search were stored.
Officer Simpson had charge of the evidence kit. At some point after he was searched, the defendant was brought onto the porch of 59 Chili Terrace, along with other individuals who were taken into custody at the residence.
Subsequently, approximately an hour after he first encountered the defendant in the basement and after the search of 59 Chili Terrace was just about completed, Moses, at McDonald's direction, took possession of one set of keys from the evidence kit. Other officers also took possession of the other sets of keys that had been secured in the evidence kit. The purpose in doing so was to determine which vehicles belonged to which suspects because it was expected that search warrants would be sought for some vehicles and they would be towed. At the time Moses took the set of keys from the evidence kit, he did not know it had been found on the defendant's person.
Moses then went out onto the front porch of 59 Chili Terrace where the defendant and the other occupants of the residence had been secured. Moses held up the set of keys that McDonald had removed from the defendant and asked to whom they belonged. The defendant, who was still handcuffed, responded that they were his keys. Moses then pressed the lock button on the key pad, which caused a beeping sound and caused the lights to illuminate on a blue Subaru that was parked one house away from 59 Chili Terrace, between a street light and fire hydrant. Moses asked the defendant if that was his vehicle, and the defendant answered "Yes." Moses next asked the defendant how he could be sure that the Subaru was in fact the defendant's vehicle. The defendant then indicated that the vehicle was actually a rental and belonged to his girlfriend, but that his belongings were inside the car. Moses proceeded to ask the defendant if he could look inside the vehicle for the rental agreement and to verify that items inside the Subaru did belong to the defendant. The defendant told Moses that he could, but just to make sure that he did not tear up the vehicle. At the same time, the defendant called out to his uncle, Drumgoole, who was across the street, and asked him if he could take the vehicle to his (the defendant's) girlfriend. Moses responded by telling the defendant, in sum and substance, that he would not tear up the vehicle and that his uncle could be present when Moses checked the Subaru. Prior to asking questions about the keys and Subaru, Moses never advised the defendant of his constitutional rights. At the time he gave consent, the defendant was approximately thirty to thirty-one years old, he did not appear to be in any physical pain or suffering from any physical ailments, and he never indicated to Moses that he did not want Moses to look inside the car.
After obtaining permission from the defendant, Moses proceeded to the Subaru. He instructed Drumgoole to stand ten to twelve feet away on the sidewalk to observe what he was doing. Moses pressed the key pad, unlocking the driver's side door and opened it. He looked in the back of the vehicle and noticed a large gym bag that had clothing partially in and out of the bag. Moses observed a piece of paper on the floor, which he picked up and, upon examination, found to be a hotel receipt. Next, Moses looked in the center console to see if he could locate the rental agreement. When he did so, he discovered personal items and a knotted up plastic bag with a white chunky substance, which he believed to be cocaine. Upon finding the suspected cocaine, Moses locked the Subaru and notified Officer Simpson. He also told Drumgoole that they would have to step away from the vehicle, and that he was notifying another officer about what was in the Subaru.
Besides the Subaru, a Jeep was parked in the driveway of 59 Chili Terrace and a BMW was parked in front of that address. Search warrants were obtained to search these vehicles.*fn3
B. Suppression of Statements
By supplemental affirmation of counsel (Docket # 76) filed on May 2, 2009, four days after the completion of the hearing, the defendant, for the first time, moves to suppress any statements he made to Moses, prior to the search of the Subaru, because he was subjected to a custodial interrogation without being afforded his ...