The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On April 27, 2011, Defendant Kyle Harris moved to suppress evidence seized during a search conducted at 16 Holly Lane in New Bedford, Massachusetts on December 22, 2010. Defendant contends that this search was conducted in violation of his rights under the Fourth Amendment. The Government filed a brief in opposition to Defendant's motion on May 11, 2011, and a hearing was commenced on May 17, 2011. The hearing was continued on June 3, 2011, post-hearing briefs were filed on June 13, 2011, and the Government filed a reply memorandum on June 24, 2011.
During the suppression hearing held on May 17, 2011 the Government called as witnesses Agent Guy McCormick of the Agency of Tobacco, Firearms and Explosives (the "ATF"), while the defense called Tarean Joseph. At the continuation of the suppression hearing on June 3, the Government called Agent Michael Zeppieri of the ATF.
I. Testimony of Agent Guy McCormick.
Agent Guy McCormick has been employed by the ATF as a special agent since 2004, and is currently assigned to "New York Group One" which is a group focused on violent crimes and gangs. (Transcript of the May 17, 2011 Suppression Hearing ("May 17 Tr." at 4.) His duties entail investigating crimes involving narcotics, firearms, homicides, robberies and other crimes of violence. (Id. at 5.)
On December 22, 2010, Agent McCormick participated in the arrest of the Defendant, Kyle Harris, at 16 Holly Street in New Bedford, Massachusetts. (Id. at 5-6.) Prior to this arrest, Agent McCormick had been the ATF case agent in the agency's investigation of Mr. Harris. (Id. at 6.) Pursuant to that role, Agent McCormick initiated the case, "swore out the arrest warrant," and was responsible for administrative duties and enforcement actions pertaining to the case. (Id.) On the day of the arrest, Agent McCormick was part of the surveillance team, and subsequently part of the arrest team once Mr. Harris was located. (Id.) Also present at the arrest, to Agent McCormick's recollection, were his supervisor, Agent Michael Zeppieri, several U.S. Marshals and several members of the New Bedford Police Department. (Id.)
Late in the morning of December 22, 2010, Agent McCormick arrived at 16 Holly Street with an arrest warrant for Kyle Harris. (Id. at 6-7.) 16 Holly Street is a multilevel residential home, with three entrances. (Id.) Agent McCormick approached the ground floor entrance, and began knocking on the door, while another team of officers knocked on the door of a separate entrance located a level above him. (Id. at 8.) He then heard one of the officers at the entrance on the upper floor say "we have contact." (Id. at 9.) Agent McCormick then walked up the stairs and entered the apartment through the second floor entrance. (Id.)
Upon entering the apartment, Agent McCormick could see that several of the officers were in contact with "what [he] assumed at the time were residents of the apartment." (Id. at 10.) Other officers were conducting a security sweep of the apartment. (Id.) Agent McCormick joined in the security sweep to make sure that "there was nobody hiding in any of the rooms with firearms or trying to evade contact with the police." (Id.) During the sweep, the officers came across someone in the bathroom, but Agent McCormick testified that he did not believe this person was hiding from the police. (Id.) In total, Agent McCormick recalled that there were three or four individuals in the apartment, other than members of law enforcement, including Mr. Harris and Mr. Tarean Joseph. (Id. at 11.)
Agent McCormick testified that "when you enter the apartment [at 16 Holly Street], you are first looking at.a kitchen sitting area, then straight back was a, I guess like a living room area that had a couch in the center and a television against the right wall." (Id. 11-12.) When Agent McCormick first encountered Mr. Harris, he was sitting handcuffed on a couch in the middle of the living room. (Id. at 12.) Mr. Joseph was handcuffed and sitting in a chair. (Id.) Agent McCormick testified that "if you are looking into the apartment, there was the couch in the middle of [the] room. That's where Mr. Harris is sitting. There was an individual, Mr. Joseph, was sitting in a chair the right of the room, and then there was another individual sitting in the back of the room on another chair. And I don't remember if he was the same individual that I think we encountered in the bathroom." (Id. at 13.) Agent McCormick described Mr. Harris as "calm," and testified that "[Mr. Harris] was acting like a gentleman." (Id. at 13.)
Agent McCormick walked over to the couch where Mr. Harris was sitting. (Id. at 14.) Meanwhile, other agents were taking names and information from the other individuals in the apartment, including Mr. Joseph. (Id.) Agent McCormick testified:
I spoke to Mr. Harris and said, Kyle Harris? He said, yes. We're federal agents. We have an arrest warrant for you. At that point I think I said which room is yours? And he kind of motioned with his head over his shoulder, the room behind him. And it was clear it was the only room that was directly behind the couch. And I said, can I go in there and do you have any guns or drugs, anything in there? He said, no, I don't. I said, can I go and look around and search and he said sure. At which point I went in and I began to search his room. (Id.) The Government then asked "[at] any point while you were searching his room or even before you started searching his room did Kyle Harris say you could not search his room?" to which Agent McCormick answered "no." (Id.) The Government next asked "when you asked him [for consent] did he answer you clearly or did he mumble? How did he answer you when you asked him?" and Agent McCormick replied "He answered me clearly but he gave me a short answer like "yes" or "sure", "I don't care" anything along those lines but it was definitely affirmative that I could search his room." (Id.)
At the time Agent McCormick was speaking with Mr. Harris, he was with Special Agent Zeppieri of the ATF, and there were other marshals and detectives present in the room. (Id. at 15.) Agent McCormick did not have his gun drawn at the time he was speaking to Mr. Harris. (Id.)
Agent McCormick next testified that he did not ask Kyle Harris to sign a written consent form when he requested consent to search his room. (Id.) He explained that he did not have such a form with him, because the situation was "fluid," and in order to get someone to sign a consent form one would need to remove the subject's handcuffs. (Id. at 15-16.) Agent McCormick testified that "[i]t's an agent safety issue with uncuffing somebody when they're in their own residence. . . We don't [un]cuff them until we get them into a holding cell or some other kind other police custody." (Id. at 16.) The ATF does not require its agents to obtain a signed form before searching pursuant to consent. (Id.)
After Mr. Harris consented to Agent McCormick searching his room, Agent McCormick entered the room and found a digital scale, several cell phones, and a Police Athletic League identification from the Bronx for Mr. Harris. (Id.) Agent McCormick then testified that he did not search the rest of the apartment because "[w]e did not have consent to. The only other thing we searched was we searched the couch because it would have been in immediate grabbing distance of Mr. Harris when he is sitting there." (Id.) The officers found cell phones in the vicinity of the couch. (Id. at 17.)
While Agent McCormick was speaking with Mr. Harris he noticed that Mr. Joseph was speaking to a New Bedford Detective, who was asking Mr. Joseph for his name, date of birth and address. (Id.) Agent McCormick did not speak with Mr. Joseph. (Id.) The third individual that Agent McCormick identified was speaking with other officers at the same time, and stated that the apartment was his. (Id.) Agent McCormick never heard Mr. Joseph object to the officers searching Mr. Harris's room. (Id. at 18.)
Agent McCormick testified that he did not Mirandize Mr. Harris in the apartment, but that he did Mirandize Mr. Harris later that day, after Mr. Harris's arrest, while they were in transit. (Id. at 18-19.)
On cross-examination, Agent McCormick testified as to his training as an ATF agent, and stated that he was trained that "we can get written consent [prior to a search]. There is no preference as long as we have another agent or law enforcement officer who witnesses the verbal consent." (Id. at 20.) Agent McCormick stated that in this instance, Agent Zeppieri witnessed the consent. (Id. at 21.) Agent McCormick then acknowledged that although he was not carrying a search consent form with him on the day of the arrest, these forms are generally available at the ATF's offices. (Id. at 24.) But, he explained "I don't [bring forms with me] because there's always a danger when they sign this out in the field that they could get violent. In my time as an ATF agent I get oral consent with a witness, I don't, I don't get written consent." (Id.) Agent McCormick testified that he has never obtained written consent to search. (Id.) Agent McCormick agreed that the "sole issue" from his perspective with using the form is the risk of uncuffing the target of the investigation and creating a dangerous situation. (Id. at 25.)
Agent McCormick indicated that there could have been about eight members of law enforcement in the room at the time that he obtained Mr. Harris's consent to search. (Id. at 26.) He stated that he still felt that uncuffing Mr. Harris to obtain written consent would have been dangerous because "Mr. Harris is accused of an extremely violent crime and I was not going to uncuff him at all until he was in a police holding cell. . . . The [arrest] warrant was for a Hobbs Act robbery where the victim was very brutally stabbed." (Id.)
Agent McCormick was then asked to repeat precisely what he said when he requested Mr. Harris's consent to search the bedroom. He replied "I asked Mr. Harris.do you have any guns or drugs or anything like that in your room? He said, no. And I said to him, can I get a look around? Can I go search your room? And I don't remember if it was a short response. It was "yes," "sure," something along those lines." (Id. at 27.) Agent McCormick did not recall what Mr. Harris's exact response was. (Id.) He explained that he remembers it being an affirmative response "because I remember after that I said, okay. I am allowed to search his room, so I went and searched his room." (Id. at 28.) He continued, "If he had said, no, you are not allowed to search, I would not have searched. That's happened to me many times." (Id.) Defense counsel then asked "[t]he fact that you searched you know that he gave you consent?" and Agent McCormick replied, "[t]hat's correct." (Id.)
Agent McCormick then testified that he did not recall the exact time that he entered the apartment, only that it was late morning. (Id. at 28-29.) He also stated that he could not recall whether there were three or four people in the apartment when law enforcement arrived. (Id. at 29.)
Agent McCormick testified that if he were to have searched Mr. Harris's room without consent, the search would have been in violation of ATF policy. (Id. at 31.) Agent McCormick also testified that were he found to have committed such a violation of ATF policy he could be subject to punishment. (Id.)
On redirect examination, Agent McCormick testified that he did not have any doubt that Mr. Harris gave him consent to search the bedroom. (Id. at 32-33.)
II. Testimony of Tarean Joseph
The defense called as a witness Tarean Joseph.*fn1 Mr. Joseph testified that he is 25 years old, and that he has known Mr. Harris for about seven years. (May 17 Tr. at 48.) He explained that he is acquainted with Mr. Harris from having grown up in the sameneighborhood. (Id.) Mr. Joseph testified that he is originally from the Bronx, but currently resides in New Bedford, Massachusetts, where he is unemployed. (Id.)
Mr. Joseph testified that he had been arrested twice, and had pled guilty to offenses including marijuana possession, gun possession, and crack possession, and for being "in a house ...