The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
On September 11, 2007, a grand jury returned an indictment against defendants Ling Zhen Hu (Hu) and Xiao Chen Lin (Lin) and others charging them with engaging in a conspiracy to sell counterfeit Nike sneakers throughout the United States. Arrest warrants were issued for Hu and Lin and on September 12, 2007, at 6:00 a.m., Department of Homeland Special Agents Brian Hurwitz and Michael Cameron and several others went to the defendants' residence at 3802 149th Place, Flushing, New York ("premises"). That premises consisted of a three-story apartment building.
Agents rang all three doorbells. They waited about two minutes. Then one of the agents noticed a light go on in the hallway and a man walking down the stairs toward the entryway. Agent Cameron yelled "police," and the man fled up the stairs toward the third floor. Agents entered the building through an unlocked metal door with grating. Agent Cameron and several others chased the man up toward the third floor while other agents, including Hurwitz, stopped at the second floor apartment. Hurwitz knocked on the door*fn2 and a woman answered. She was wearing only a tank top and underwear. Agent Hurwitz showed her the arrest warrant. She opened the door and moved out of the way. Hurwitz entered the foyer and begin engaging her while other agents followed in behind him to see who else was in the apartment. (Tr. of Hearing, Dkt. 507, at 15, 90-91). Hurwitz identified the woman as Hu from a photograph that he had. She had difficulty communicating in English. The agents who entered the apartment behind Hurwitz discovered the defendants' fourteen-year-old son, but no one else.
In the meantime, agents pursuing the fleeing man located him hiding in a bathroom of the third floor apartment. Suspecting that he was defendant Lin, they brought him to the second floor to confirm his identity. (Tr. of Hearing, Dkt. 523, at 80). Lin was wearing only a t-shirt and underwear.
Agents escorted both defendants into the apartment and seated them on the living room couch. Lin, who also had difficulty communicating in English, was identified using a passport and license found in the apartment. Once identified, Hurwitz escorted Lin to his bedroom to get dressed while Hu remained on the couch. (Tr. of Hearing, Dkt. 507, at 21-22). Agents decided to forgo handcuffing the defendants as a courtesy because their son was in the apartment. However, they opened the drawer to a coffee table directly in front of the couch where Hu was seated to ensure that no dangerous objects were located within reach. When they opened the coffee table drawer, they saw $1,800 in cash laying on top. (Tr. of Hearing, Dkt. 507, at 99). Hurwitz, who testified about the discovery, was not present when this occurred. Instead, he was in the bedroom getting Lin dressed to leave. Information about the $1,800 was later relayed to him by Agent Glenn Bartley. (Tr. of Hearing, Dkt. 507, 99-100).
Once Lin was dressed, he was returned to the couch and Hu was given a chance to get dressed. It took about ten minutes for each defendant to get dressed, for a total of twenty minutes. After both defendants were dressed, they were returned to the living room couch. (Tr. of Hearing, Dkt. 507, at 26-27). When asked why Agents did not immediately remove the defendants from the apartment at that point, Hurwitz testified that agents waited for the defendants' son to get dressed and off to school before removing the defendants from their apartment. He also stated that they were attempting to reach an interpreter via telephone during that time to determine whether the defendants would consent to a search of their apartment. When asked whether there was any reason for the agents to wait for the defendants' son to leave the apartment before arresting the defendants, Agent Hurwitz said "no." (Tr. of Hearing, Dkt. 507, at 105). At some point, an interpreter was reached, and defendants (through the interpreter) refused to consent to a search.
While in the apartment, agents observed a variety of items. Specifically, Hurwitz testified that he and other agents also observed "documents, photographs, and evidence of counterfeiting and trafficking in counterfeit merchandise, both in the living room and in the kitchen." (Tr. of Hearing, Dkt. 507, at 27). They also saw a large cash counting machine in the corner of the living room, in an open box, and (as noted) found $1,800 in cash in a coffee table drawer that they opened because it was within reach of the couch where the defendants were seated. All of these items were seized, purportedly under the plain view exception. Agents remained in the apartment for a total of an hour or so. At about 7:00 a.m., the defendants' son left for school and the defendants were removed from their apartment.*fn3
A search warrant was obtained the following day, on September 13, 2007, at 3:26 p.m. from Magistrate Judge Go in the Eastern District of New York. As probable cause for the warrant, agents relied upon information already known about the defendants' alleged involvement in counterfeit trafficking, as well as items purportedly observed in "plain view" during the arrest of the defendants on September 12, 2007. Specifically, the application stated:
While effecting the arrests, a money-counting machine was observed in plain view on the floor of the living room. On the coffee table, in plain view, there was [sic] stack of photographs of sneakers. Based upon my investigation and experience, I am aware that sellers of counterfeit merchandise frequently show pictures of their products to potential buyers. During a security sweep, agents also found in the drawer of a coffee table in the living room approximately $1800 in United States currency on the coffee table, records of deposits, money orders, and assorted financial documents, which included a computer print-outs.*fn4 A desktop computer, printer and fax machine were also observed in the right rear bedroom. Cell phones were also observed in the bedroom, living room and kitchen areas.
(See Affidavit of Brian Hurwitz, in support of search warrant, at ¶ 19) (emphasis added). Upon execution of the search warrant, officers discovered more evidence in the apartment, including a substantial amount of cash.
Defendants moved to suppress all of the evidence seized from the apartment as obtained in violation of the Fourth Amendment. They argued that officers had no basis to be in the apartment in the first place and therefore should not have been in a position to view the items purportedly observed in plain view. They also argued that the incriminating nature of the items seized was not immediately apparent and therefore did not fall within the scope of the plain view exception. Since observation of the plain view items formed the basis of the agents' probable cause to obtain a search warrant, they argued that all items seized pursuant the warrant should be suppressed as fruit of the poisonous tree.
Following a three-day hearing, Magistrate Judge McCarthy, to whom the motion had been referred, determined that suppression was warranted. The Magistrate Judge concluded that entry into the building was proper because agents had arrest warrants and a reasonable basis to conclude that the defendants were home at the time. However, as to entry into the apartment, Magistrate Judge found that agents were only authorized to enter the foyer of the apartment (where Hu was first encountered) and immediately adjoining areas, but they were not authorized to enter kitchen and living room areas where the items purporting to be in plain view were discovered. The Magistrate Judge found that the agents could, "'as a precautionary matter, and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched,'" (Report and Recommendation ("R and R"), Dkt. 587, at 9 (quoting Maryland v. Buie, 494 U.S. 325, 334 (1990)), but that they were "not entitle[d] to look in other rooms of the apartment." Id. Hence, the Magistrate Judge determined that the items found in the living room and the kitchen should be suppressed because those area were not immediately adjoining the foyer and agents had no basis to believe that anyone inside posed a danger. The Magistrate Judge further determined that, even if agents were authorized to enter those areas, a plain view seizure was improper because the incriminating nature of the items was not "immediately apparent." The Magistrate Judge recommended that all items discovered during the September 12, 2007 entry be suppressed. Since discovery of those items formed the basis for probable cause to obtain a search warrant, the Magistrate Judge also recommended that the money discovered during execution of the search warrant be suppressed as fruit of the poisonous tree.
Both the government and the defendants filed objections. The government objects to the Magistrate Judge's determination that suppression was warranted, and the defendants objected to the Magistrate Judge's ...