The opinion of the court was delivered by: Matsumoto, United States District Judge
Defendant Sauri Morel ("defendant" or "Morel") is charged with knowingly and intentionally importing into the United States five kilograms or more of a substance containing cocaine, and knowingly and intentionally attempting to distribute and possess with intent to distribute five kilograms or more of a substance containing cocaine, in violation of Title 21 U.S.C. Sections 952(a), 960(b)(1)(B)(ii), 841(a)(1), 846, and 841(b)(1)(A)(ii)(II) and Title 18 U.S.C. Sections 2 and 3551 et seq. (See Doc. No. 7, Indictment.) Morel moves to suppress (i) his post-arrest statements on the grounds that they were elicited in violation of his Constitutional rights; and (ii) any evidence seized as a result of a search of Morel's cell phone on the grounds that the consent to search was not freely and voluntarily made. (See Doc. No. 23-1, Memorandum of Law in Support of Defendant's Motion to Suppress ("Def. Mem."); Doc. No. 27, Defendant's Affirmation in Support of Motion to Suppress dated 3/11/10 ("Def. Aff."); Doc. No. 34, Defendant's Post- Hearing Ltr. dated 5/17/10 ("Def. Supp. Mem.").) The government contends that the motions should be denied in their entirety. (See Doc. No. 25, Government's Memorandum of Law in Opposition to Defendant's Motion to Suppress ("Gov. Mem."); Doc. No. 38, Government's Post-Hearing Ltr. dated 6/4/10 ("Gov. Supp. Mem.").)
The court held a suppression hearing on April 19 and 22, 2010, during which the government presented three witnesses: Department of Homeland Security, Immigration and Customs Enforcement ("ICE") Special Agent Daniel Goldstein ("Agent Goldstein"); ICE Special Agent Daniel Reed ("Agent Reed"); and ICE Special Agent John Lattuca ("Agent Lattuca"). (See generally Transcript of Suppression Hearing ("Tr.").) In addition, Morel testified on his own behalf with the assistance of a Spanish interpreter. (Tr. 122-58.)
Having considered the appropriate burdens of production and proof, the testimony of witnesses, the suppression hearing exhibits, the parties' written submissions, including defendant's affidavit dated March 11, 2010, and having resolved issues of credibility, the court grants in part and denies in part defendant's motion. What follows sets forth the findings of fact and conclusions of law upon which this determination is based.
The following findings of fact are taken from the testimony of defendant and Agents Goldstein, Reed, and Lattuca, and the parties' submissions on the instant motions including defendant's affirmation dated March 11, 2010. Additional findings of fact are included in the Discussion section, infra.
On June 21, 2009, American Airlines flight number 1582 arrived at John F. Kennedy International Airport ("JFK") from the Dominican Republic. (Gov. Mem. at 3.) Sometime between 1:00 a.m. and 3:30 a.m., during a "routine search" of the cargo contained aboard that flight, officers with the U.S. Customs and Border Protection ("CBP") inspected a container removed from the plane which contained approximately 10 bags. (Gov. Mem. at 3; Tr. 40, 99.) CBP officers examined the contents of the bags and found that some of the bags contained breadfruit,*fn1 and other bags contained "plastic round orbs" similar in appearance to the breadfruit, but which contained a white powdery substance, which field tested positive for the presence of cocaine. (Gov. Mem. at 3.) CBP seized cocaine with a gross weight of approximately 107.9 kilograms from the containers. (Gov. Mem. at 3.; Tr. 99.)
After the seizure was made, the Internal Conspiracy Group, which focuses on cases involving corrupt airport or airline employees, initially handled the investigation. (Tr. 99.) The cocaine was removed and the containers were delivered to the American Airlines cargo warehouse where the Internal Conspiracy Group supervised a controlled delivery. (Gov. Mem. at 3; Tr. 5, 99.) Later that day around 3:00 p.m., Morel arrived at the American Airlines cargo warehouse and was arrested at approximately 3:45 p.m. after he took possession of the container and began loading the bags into his cargo van. (Gov. Mem. at 3; Tr. 19, 39-40, 100, 123-24.)
B. The Internal Conspiracy Group Interview: Agent Goldstein
After Morel's arrest, the case was initially assigned to Agent Goldstein, a member of the Internal Conspiracy Group, who testified credibly. (Tr. 16.) Agent Goldstein and Special Agent Meredith Leung ("Agent Leung")*fn2 first interviewed Morel around 4:30 p.m. in a small interview room that contained a table and some chairs.*fn3 (Tr. 6, 14, 27, 124-25.) At this point, Morel was not free to leave. (Tr. 23, 124; see also Def. Aff. ¶ 3.) Agent Goldstein began the interview by introducing himself and advising the defendant of his rights.*fn4 (Tr. 6-7.)
Specifically, Agent Goldstein credibly testified that he used a Department of Homeland Security Statement of Rights Form ("Rights Form") which he turned to face Morel so that Morel could read along if he desired, and Defendant Goldstein read the Rights Form aloud upside down. (See Tr. 6-10; Government Exhibit ("GX") 1.) As Agent Goldstein read aloud the list of rights contained on the Rights Form, Morel indicated that he understood each right. (Tr. 8-10.) However, Agent Goldstein did not ask Morel to initial next to each sentence. (Tr. 24.) Agent Goldstein asked Morel if he wanted to waive his rights and make a statement and Morel indicated that he did, and circled the word "Yes" in response to the questions whether he understood his rights, and whether he wished to waive his rights. (Tr. 23-24.) At 4:34 p.m., Morel initialed and signed the Rights Form indicating his desire to waive his rights. (See GX 1.) Agent Goldstein and Agent Leung also signed the Rights Form at that time and Agent Goldstein dated and time-stamped the document. (Tr. 10; GX 1.)
Agent Goldstein then asked Morel for permission to search the two cell phones that were found in Morel's possession when he was arrested. (Tr. 10.) At 4:38 p.m., by signing an Immigration and Customs Enforcement Consent to Search Form ("Consent to Search Form"), the defendant gave Agent Goldstein permission to search his cell phones. (Tr. 11; GX 2.) Agent Goldstein also signed the Consent to Search Form. (Tr. 11; GX 2.) Both forms used by Agent Goldstein were in English and Agent Goldstein testified that Morel appeared to have no difficulty speaking and understanding English.*fn5 (Tr. 16-17.) Agent Goldstein did not threaten Morel in order to secure Morel's signature on the documents. (Tr. 15.)
Agent Goldstein then conducted a short interview with Morel. Throughout the interview, Morel appeared to be in good physical health. (Tr. 14-15.) During the interview, Morel stated that he made his living as a driver, and had responded to an advertisement in a newspaper to transport goods from JFK. (Tr. 18.) Morel stated that he had asked his friend Henry to help him by accompanying him to the airport to pick up bags of fruit, and expected to pay Henry between $200 and $250 in return. (Id.) Roughly a half hour later, around 5:00 p.m., Agent Goldstein was asked to step out of the interview to work on another case and Morel's case was transferred to the JFK Narcotics Smuggling Unit ("JNSU") which investigates cases involving international drug smuggling. (Tr. 16, 29, 97, 99-100.) The court finds Agent Goldstein's testimony credible.
C. The First JNSU Interview: Agents Reed and Lattuca
After the case was transferred, Agent Lattuca, a supervisor in the JNSU, assigned Agent Reed as the case agent. (Tr. 99-100.) At the time, Agent Lattuca had been assigned to the JNSU for approximately three years, and had been involved in over a hundred investigations. (Tr. 97.) By contrast, at that time, Agent Reed had been assigned to the JNSU for less than one year. (Tr. 29.) Prior to transferring the case, Agent Goldstein briefed Agent Reed*fn6 and Agent Reed read over Agent Goldstein's handwritten notes regarding the investigation. (Tr. 31.)
Agents Reed and Lattuca first met with Morel sometime between 5 and 6 p.m. in an interview room at the ICE office in JFK. (Tr. 31, 101, 127.) The interview room was a small room with mirrored glass on one side, a desk with a telephone on it in the middle, and chairs around it. (Tr. 101.) During this interview (the "First JNSU Interview"), Morel was handcuffed. (Tr. 34, 124.) Agents Reed and Lattuca were together for this entire interview, with no other agents present. (Tr. 31, 108, 114, 127.) To start the interview, Agent Reed introduced himself and informed Morel why he was under arrest. (Tr. 31.) Agent Reed then orally read Morel his rights from a standard Miranda rights card.*fn7 (Tr. 32, 102; GX 3.) Agent Reed did not use any written acknowledgement or have Morel initial the card, (Tr. 46-47), however, Morel indicated that he understood his rights and waived those rights, agreeing to speak to the Agents without an attorney present. (Tr. 33, 36, 102.)
This First JNSU Interview with Agents Reed and Lattuca lasted between half an hour and one hour. (Tr. 47, 86, 103, 128.) Throughout this first interview, Morel denied that he knew anything about the shipment of fruit containing narcotics. (Tr. 36, 61, 67-68, 86, 103, 109.) Specifically, Morel informed the agents that he had answered a newspaper advertisement for a truck driver and that he expected to be paid around $5,000 to come to JFK with a truck, pick up a cargo of fruits and vegetables, and bring the cargo back to the Bronx. (Tr. 103.)
Morel also told the agents that he had previously made one other trip to the airport to pick up a load of fruit and vegetables for which he had been paid $500. (Tr. 103, 109.) During this previous trip, Morel stated that he had been instructed to drive the fruits and vegetables to a particular cross street in the Bronx where there was a dumpster and to deposit the cargo in the dumpster and it would be handled from there. (Tr. 103-04.)
It is undisputed that Morel did not request an attorney at any time during this First JNSU Interview. (Tr. 66-67, 114.) Additionally, during this interview, Morel appeared to understand English and to be in good physical health. (Tr. 102.) After the conclusion of this first interview, the agents did not resume questioning the defendant until sometime after 10:00 p.m. (Tr. 95, 110.)
D. The Request for Counsel: Agent Reed and DEA Agent Carolyn Kraft
During the interim period, Agents Lattuca and Reed focused on interviewing other individuals who had been arrested that day. (Tr. 68, 109-10.) There is some contradiction in the record about what occurred during the next few hours. While he was generally focused on interviewing other arrestees during this period (Tr. 68), Agent Reed also testified that, after the initial interview, he had further contact with Morel, outside the presence of Agent Lattuca (Tr. 68, 86-87). Agent Reed testified that during his subsequent contact with Morel while Drug Enforcement Administration Agent Carolyn Kraft ("Agent Kraft") was present, Morel requested an attorney. (Tr. 87-88.) As discussed infra, the court credits Agent Reed's testimony on this issue. Accordingly, to the extent that the testimony of Morel*fn8 contradicts Agent Reed's testimony about Agent Reed's contact with Morel during this period, Morel's testimony is not credited on this point. The testimony of Agent Lattuca*fn9 is generally consistent with Agent Reed's, and to the extent that it is inconsistent with Agent Reed's the court credits the recollection of Agent Reed regarding the circumstances in which Morel requested an attorney in the presence of Agent Reed and Agent Kraft.
Thus, according to Agent Reed, after the conclusion of the First JNSU Interview (Tr. 63), and sometime around 7:00 p.m. (Tr. 58-59), Agent Reed approached Morel while Morel was being processed and fingerprinted (Tr. 66, 86). In the presence of Agent Kraft, Agent Reed asked Morel a question in reference to Morel's cell phone, and Morel responded by stating that "he wanted to speak to a lawyer, or something to that effect." (Tr. 66, 86.)
When Morel made this request for an attorney, only Agents Reed and Kraft were present. (Tr. 63, 87-88, 92.) When Morel requested an attorney, Agents Reed and Kraft ceased questioning the defendant and they both left the room. (Tr. 86-89.) Agent Lattuca was not present when Morel requested an attorney (Tr. 87, 92), and Agent Reed did not inform Agent Lattuca of Morel's request for counsel (Tr. 88). Agent Reed also testified that he did not recall Agent Kraft or anyone else informing Agent Lattuca about Morel's request for counsel. (Tr. 93.) Agent Reed also did not write any ...