The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
DECISION & ORDER and REPORT & RECOMMENDATION
By Order of Hon. David G. Larimer, United States District Judge, dated December 14, 2010, all pretrial matters in the above-captioned case were referred to this Court pursuant to 28 U.S.C. §§ 636(b)(1)(A)-(B). (Docket # 67). Defendant Martin Young ("Young") has been charged with conspiracy to possess with intent to distribute and to distribute one hundred or more kilograms of marijuana, in violation of 21 U.S.C. § 846. (Docket # 1).
Currently pending before the Court are Young's motions to dismiss the indictment for insufficiency of the evidence and to suppress physical evidence, statements and evidence of a photographic identification. (Docket # 72). On July 6, 2011, this Court conducted an evidentiary hearing on the suppression motions. (Docket ## 93, 94). For the reasons discussed below, I recommend that the district court deny Young's motions to dismiss the indictment and to suppress tangible evidence and statements. As to the photographic identification, this Court shall continue the Wade hearing before making a recommendation on that motion.
I. September 15, 2009 Identification Procedure
Andrew Woeppel ("Woeppel") testified that he has been employed as an agent with the Drug Enforcement Administration ("DEA") for over six years. (Tr. 8).*fn1 On September 15, 2009, he and another DEA agent, Brian Hanley ("Hanley"), conducted a photographic identification procedure as part of a marijuana trafficking investigation in which they were involved. (Tr. 49-50, 80). According to Woeppel, on that day he met with a confidential informant who had previously provided information about Young. (Tr. 81). Woeppel testified that he asked the informant to review a photographic array and to indicate whether he or she recognized any of the individuals depicted in the eight photographs. (Tr. 51, 54). Woeppel further testified that he asked the informant to initial and date the photograph of any individual whom the informant recognized and to write the name of the individual. (Tr. 51). After considering the array for about ten seconds, the informant identified Young in photograph six. (Tr. 52, 55-56, 80). The informant wrote the name "Martin Young," along with the informant's initials and the date, below the picture. (Tr. 55-56). Both agents signed the photo array. (Tr. 53).
The array contains eight photographs of different African-American men. (G. Ex. 3). Photograph six depicts Young. (Tr. 83; G. Ex. 3). Young's complexion is significantly darker than the other seven individuals. (G. Ex. 3). In addition, the background hue in his photograph is blue, while the backgrounds of the other photographs are more muted, ranging in hues from grays to greens.*fn2 (Id.). All men depicted have short hair and mustaches, and some have slight beards. (Id.).
II. November 12, 2010 Arrest and Search
Woeppel testified that on November 12, 2010, at approximately 5:30 a.m., he and an arrest team of six agents arrived at Young's home at 203 Hillcrest Street in Rochester, New York to execute a warrant for Young's arrest. (Tr. 9, 62). At approximately 5:45 a.m., he saw Young leave his house and get into a Ford pickup truck that was parked in the driveway. (Tr. 9, 10, 12). At that point, Woeppel and the other agents approached the truck with their weapons drawn, identified themselves as law enforcement officers and arrested Young. (Tr. 10, 12-14, 64). After Young was handcuffed, the agents holstered their weapons. (Tr. 15, 64). Agents seized a cell phone and wallet from Young, but later returned the wallet. (Tr. 18-19, 65).
Woeppel testified that while they were in the driveway, he and Hanley explained to Young that they were DEA agents and had a warrant for his arrest. (Tr. 15). They asked Young if he would consent to a search of his residence, and Young assented. (Tr. 15, 17, 22, 67). Young identified for the agents the key to his front door, which the agents used to enter the residence. (Tr. 18, 67).
After entering the home, agents placed Young, handcuffed, on a couch in the living room. Woeppel and Hanley remained with Young while other agents conducted a security sweep of the house. (Tr. 20, 32, 66). No evidence was seized during the sweep. (Tr. 20).
According to Woeppel, he and Hanley again explained that they were DEA agents and were present to execute a warrant for Young's arrest. (Tr. 20-21). Woeppel testified that Hanley read Young his Miranda warnings from DEA Form 13. (Tr. 37-40, 42; G. Ex. 2). According to Woeppel, Young stated that he understood his Miranda rights and was willing to speak to the agents. (Tr. 42-43).
After the warnings, Woeppel and Hanley presented a DEA "Consent to Search" form to Young. (Tr. 21; G. Ex. 1). The form has three pre-printed statements:
1. I have been asked to permit special agents of the Drug
Enforcement Administration to search: (Describe the person,
places, or things to be searched.)
2. I have not been threatened, nor forced in any way.
3. I freely consent to this search.
Woeppel testified that he explained to Young the purpose of the form, completed the section identifying the areas to be searched and then read the form aloud to Young. (Tr. 22, 26-27, 71, 73-74; G. Ex. 1). In that section, he handwrote "203 Hillcrest, Rochester, NY" and "Blue Ford Pickup in Driveway of 203 Hillcrest." (Id.). According to Woeppel, as he was filling out the form, Young stated "that he didn't want us searching, but then he asked us if we could get a warrant for the place." (Tr. 22). Woeppel testified that either he or Hanley responded in the affirmative. (Tr. 22, 23). Woeppel testified that Hanley advised Young that the decision whether to consent to the search was his. (Tr. 23-24, 69, 76). After some wavering, Young eventually ...