The opinion of the court was delivered by: Matsumoto, District Judge
Pending before the court is defendant Kemo Sylla's ("defendant" or "Sylla") motion to suppress physical evidence seized during a search of his residence at the time of his arrest on December 3, 2008. Sylla is charged with one count of smuggling African elephant ivory into the United States, in violation of 18 U.S.C. § 545, and one count of conspiracy to do the same, in violation of 18 U.S.C. § 373.
On April 21, 2009, Sylla filed a motion requesting the suppression of the physical evidence seized from his home at the time of his arrest.*fn1 (Doc. No. 126.) Sylla argued, inter alia, that this evidence should be suppressed because he signed the government's consent to search form after the search was conducted and that the warrantless search, therefore, was conducted without his consent.*fn2 (Id.)
On August 5, 2009, the court granted Sylla's motion for an evidentiary hearing on the issue of whether the seizure of evidence during the search of his residence occurred before or after he signed a consent to search form, and reserved decision on that issue pending an evidentiary hearing. (Doc. No. 149.)
The court held a suppression hearing on January 4, 2010, during which the government presented two witnesses, Philip Alegranti and Dorothy Manera, both Special Agents of the United States Department of the Interior, Fish and Wildlife Service. (See generally 1/4/10 Transcript of Suppression Hearing ("Tr.").) Defendant called two witnesses, Brian Ferrante, Special Agent for the United States Immigration and Customs Enforcement, and Watta Bamba, who resides with Sylla, along with their daughter. (Id.)
The court ordered post-hearing supplemental briefing, and submissions were completed by February 8, 2010. (1/4/10 Minute Entry; Doc. Nos. 171-173.) Upon consideration of the parties' written submissions, including defendant's affidavit, dated April 9, 2009 (Doc. No. 126, Notice of Mot., Ex. A), and the testimony and evidence presented at the suppression hearing, and for the reasons stated below, the court denies defendant's motion to suppress.
A. Credibility of the Witnesses
Special Agent Philip Alegranti ("Alegranti"), whose testimony the court finds credible, has been working for the United States Department of the Interior, Fish and Wildlife Service (the "USFWS") since 1999. (Tr. at 7.) He started as a Wildlife Biologist in the International Affairs Division and then worked as an Intelligence Research Specialist before becoming a Special Agent in 2004. (Tr. at 7.) Special Agent Manera ("Manera"), whose testimony the court also finds credible, has been a Special Agent of the USFWS for sixteen years. (Tr. at 81.) She has received training in the detection of ivory and has experience in elephant ivory investigations. (Tr. at 23-24, 81.) Special Agent Ferrante ("Ferrante"), whose testimony the court finds credible, has been a Special Agent of the United States Immigration and Customs Enforcement ("ICE") for two years. (Tr. at 131.)
Watta Bamba ("Bamba"), whose testimony the court finds credible, is the mother of Sylla's daughter, both of whom were living with Sylla on December 3, 2008. (Tr. at 147-148, 153.) Like Sylla, Bamba's first language is Mandingo and she testified with the assistance of a Mandingo interpreter. (Tr. at 146-147; Sylla Aff. at ¶ 20.)
B. Entrance into Sylla's Residence and the Protective Sweep
On the morning of December 3, 2008, two separate arrest teams convened outside Sylla's residence at 222 Virginia Avenue in Trenton, New Jersey to execute arrest warrants for Sylla and Seidou Mfomboutmoun ("Mfomboutmoun").*fn3 (Tr. at 10.) Mfomboutmoun's arrest team had surveilled Mfomboutmoun's car around the vicinity of Sylla's house the previous evening, December 2, 2008, and based on its proximity to Sylla's house as well as subsequent surveillance of the car and residence, determined that Mfomboutmoun was inside Sylla's house. (Tr. at 9, 27-28, 31-32.)
At approximately 6:10 a.m., between 10 to 12 ICE agents, in addition to Alegranti and Manera, knocked on Sylla's door. (Tr. at 10-11, 26, 33, 133.) Sylla answered the door, appearing as if he had been awoken from sleep. (Tr. at 11, 34, 37.) The agents identified themselves as the police with arrest warrants and asked if there were other people in the house. (Tr. at 12, 35.) Sylla indicated that there were other adults sleeping upstairs. (Tr. at 12, 35, 149.) Based on Sylla's response that there were other people sleeping upstairs, and based on the belief that a second defendant, Mfomboutmoun, was in the house, the agents preformed a protective sweep of the residence.*fn4 (Tr. at 12, 35, 133.) Sylla was handcuffed in the living room and remained there during the course of the protective sweep. (Tr. at 12.)
Meanwhile, Bamba was descending the stairs from the second floor in a night dress. (Tr. at 83, 133.) Manera and a female ICE agent searched and handcuffed Bamba, and also placed her in the living room. (Tr. at 83.) Bamba indicated that there were other adults present in the home, in addition to her young daughter. (Tr. at 83, 133.) It was determined by the agents and by Bamba that her daughter should remain upstairs so she would not have to see the adults in handcuffs. (Tr. at 83-84, 118-119.)
Between approximately 6:10 a.m. and 6:15 a.m., the agents conducted a protective sweep of the house.*fn5 (Tr. at 14, 133.) The agents divided up to perform the protective sweep; some began the protective sweep in the kitchen, while another group of agents, including Alegranti and Ferrante, began their portion of the protective sweep on the second floor. (Tr. at 38, 134.) During the protective sweep of the master bedroom on the second floor, Alegranti testified that he observed a young child sleeping under the covers in the bed. (Tr. at 40.) He testified that he also observed, in plain view, a large leopard figure on the floor between the bed and the dresser. (Tr. at 14, 40; Gov't Exs. 100-C, 101.) Alegranti testified that he readily recognized this figure as a "Benin Leopard"-style statue made of ivory. (Tr. at 48-49.) He testified that he did not remove the leopard or any other item during the protective sweep nor did he observe any of the other agents remove any items during the protective sweep. (Tr. at 14.)
Ferrante testified that when he was on the second floor during the protective sweep, he recognized one of the individuals as Mfomboutmoun, confirmed his identity, placed him in handcuffs and brought him downstairs to the living room. (Tr. at 134.)
Manera did not participate in the protective sweep. (Tr. at 84.) Instead, she stayed in the living room with Bamba. (Tr. at 84.)
The agents placed all of the adults in handcuffs for security reasons and brought them downstairs to the living room at approximately 6:15 a.m. or 6:20 a.m. (Tr. at 13-14, 39, 44, 58.) In addition to Sylla and Bamba, there were three adults and one four year-old girl present in the residence. (Tr. at 13-14, 56-57.) The daughter was left upstairs in the master bedroom, and a female ICE agent went upstairs to watch after her. (Tr. at 15, 51, 121.)
C. Circumstances Surrounding Sylla's Signing of the Consent to Search Form
After the protective sweep was completed, Alegranti testified that he returned to the living room where all five handcuffed adults were assembled. (Tr. at 15.) The two arrest teams compared notes, and, at approximately 6:15 a.m., brought Mfomboutmoun into the kitchen, explained that they had an arrest warrant for him and that he was under arrest for smuggling.
(Tr. at 15-16, 60.) After approximately 10 minutes, the agents returned Mfomboutmoun back to the living room and brought Sylla into the kitchen with his handcuffs on. (Tr. at 18, 60.) Alegranti, Ferrante and ICE Agent Bob Puglisi ("Puglisi") were the only agents present in the kitchen at the time. (Tr. at 16, 137.)
Alegranti testified that the agents confirmed that Sylla spoke and understood English,*fn6 and explained to Sylla that he was under arrest for smuggling and that he would be transported back to the ICE office located at John F. Kennedy International Airport ("JFK"). (Tr. at 16-17, 67.) Alegranti testified that the agents then confirmed that the residence was Sylla's, that he lived there with Bamba and his daughter and that Sylla's name was the only one on the lease. (Tr. at 17.) Alegranti and Ferrante both testified that Ferrante asked Sylla if he would consent to a search of his home, and that Sylla responded that he would. (Tr. at 17, 69-70, 137-138.) Alegranti and Ferrante testified that Ferrante read a standard Consent To Search Form ("consent form") (Gov't Ex. 111) aloud and verbatim to Sylla, which specifically informed Sylla of his right to refuse to consent to the search of his home.*fn7 (Tr. at 17-18, 23, 69, 138-139.) Neither Ferrante nor Alegranti recalled whether Ferrante informed Sylla of his right to refuse consent separately from reading that aloud to him on the consent form. (Tr. at 70, 138-139.) The consent form specifically states:
I, Kemo Sylla, have been informed by the U.S. Immigration and Customs Enforcement (ICE) Special Agent Brian Ferrante, et al. of my right to refuse to consent to a search of my property described as: residence/home at 222 Virginia Ave., Trenton, NJ.
I have also been advised by ICE Special Agent Brian Ferrante that, if I voluntarily consent to a search of this property, anything discovered during this search may be used against me in any criminal, civil, or administrative proceedings.
I have decided to allow ICE Special Agent Brian Ferrante, et al. (ICE) and Phil Alegranti (FWS) to conduct a complete search of my residence located at 222 Virginia Avenue, Trenton, NJ. These ICE Special Agents are authorized by me to take any letters, papers, materials, or other property which they may desire to examine.
I hereby voluntarily and intentionally consent to allow ICE to search my property. My consent is freely given and not the result of any promises, threats, coercion, or other intimidation. I have read the above statement and understand my rights.
(Gov't Ex. 111; Tr. at 21-23.)
The consent form was signed by Sylla, dated December 3, 2008 at 6:30 a.m., and witnessed by Ferrante and Puglisi. (Gov't Ex. 111; Tr. at 22-23.) Although neither Alegranti nor Ferrante could definitively remember who wrote the time and date on the consent form, they each testified that it was not written in their respective handwriting. (Tr. at 75-76, 142, 145.) Based on a comparison of the handwritten date and time with Mr. Sylla's printed and signed name on the consent form, it appears to the court that the date and time are written in Sylla's handwriting. (Gov't Ex. 111.) For example, the printed name and signature indicate that Sylla writes in capital letters with the letters slanted to the right and the date and time are written in substantially similar form. (Gov't Ex. 111.)
Alegranti testified that Sylla was under arrest at the time he signed the consent form, and that his handcuffs were removed to allow him to sign the form. (Tr. at 18, 70-71.) Ferrante testified that at the time Sylla signed the form, he was "coherent" and understood what was going on. (Tr. at 139.) Alegranti and Ferrante both testified that Sylla never indicated that he did not understand English, did not understand the contents of the form he was signing, or request an interpreter.*fn8
(Tr. at 18-19, 142.) Alegranti testified that at no time did he or any of the other agents have their weapons drawn, speak in raised voices or threaten Sylla. (Tr. at 19.) Bamba corroborated that no one was yelling while Sylla was in the kitchen (Tr. at 161), and testified that the agents were polite. (Tr. at 161-162.) Alegranti further testified that Sylla did not indicate there was a part of his home that he did not want the agents to search. (Tr. at 18.) Although neither Alegranti nor Ferrante could state with certainty whether Sylla's daughter was brought downstairs before Sylla signed the consent form or whether she observed her father in handcuffs (Tr. at 56-58, 136), Manera's testimony establishes that ...