United States District Court, S.D. New York
For Defendant: George R. Goltzer, Brook E. Cucinella, Margaret Garnettt, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY.
Lewis A. Kaplan, United States District Judge.
Christian Munoz was arrested in the Bronx, New York, on May 1, 2013 for possession of marijuana. He was transported to the 41st precinct where a sergeant questioned him, purportedly in order to obtain information concerning local criminal activity. This questioning ultimately led the sergeant to believe tat Munoz, a convicted felon and parolee, owned a gun that was stored at another location. Later that day, the police recovered the gun from the apartment where Munoz lived and then elicited a confession
that Munoz owned it. Munoz now moves to suppress the gun and his statements to police.
These are the Court's findings of fact and conclusions of law after a two-day suppression hearing at which the government introduced testimony from five police officers and one layperson present during the search of the apartment.
On the afternoon of May 1, 2013, Officer Homer Henriquez and two other New York City police officers observed a known drug user exchange cash for " small objects" with someone sitting in a parked minivan. The officers approached the van, and Officer Henriquez observed three individuals inside, including Munoz and another individual, both of whom were seated in the back. Henriquez saw them " thr[owing] an object" believed to be a marijuana cigarette " from [their] face area[s] to the ground."  The police requested that the three individuals step outside. When they opened the door, a " strong odor of marijuana" emanated from the vehicle.
The officers then arrested Munoz and his two companions and took them to the police precinct. Once there, field intelligence officer Sergeant Christopher Pasquale began to question Munoz without first advising him of the Miranda warnings. Sergeant Pasquale told Munoz that the questioning was to " debrief" Munoz on his knowledge of crimes in the area, not to interrogate him with respect to crimes that he may have committed. Shortly into the questioning, Munoz said that " maybe [he] need[ed] a lawyer,"  but Sergeant Pasquale insisted that he did not " desire [Munoz] to incriminate himself in any way." 
Notwithstanding this assurance, Sergeant Pasquale -- after Munoz gave some answers that he regarded as incredible or inconsistent -- accused Munoz of dishonesty, remarking " you know, you're lying so much I wouldn't be surprised if you had a gun."  Sergeant Pasquale noted an immediate shift in Munoz's body language.
" He stopped making eye contact. Looked down, and just slumped in the seat."  The interview concluded and Sergeant Pasquale went elsewhere to question another individual who had been arrested with Munoz. When asked whether he had ever seen Munoz with a firearm, that individual responded that he had and that he believed the gun was at Munoz's home.
Sergeant Pasquale and four other police officers traveled to Munoz's apartment, hoping to obtain consent to search it for the weapon from Munoz's father who, they had learned, lived in the apartment. They did not have a search warrant and Sergeant Pasquale -- the officer in charge -- admittedly knew that the police did not have a sufficient basis to obtain a search warrant under New York law. After waiting in the building lobby for some time, Sergeant Pasquale and one other detective returned to the police precinct to seek Munoz's consent to search while the other three officers waited outside the apartment for someone to open the door or return home.
Upon arriving at the precinct, Sergeant Pasquale and another officer -- Detective Lingeza -- told Munoz that officers were waiting for his father to return to the apartment. If Munoz's father consented to the search and Munoz denied that he owned the gun, they said, the apartment's other occupants would be " subject to arrest."  And if neither Munoz nor his father consented to the search, Sergeant Pasquale said that the police would notify Munoz's parole officer, who would search the apartment and find the gun. Munoz became emotional and, in exchange for an assurance that his father would not be arrested, consented to the search. Shortly thereafter and in response to questioning, Munoz revealed that the weapon was " on a chair in the living room."  He was not read his Miranda rights at any point prior to or during this conversation.
At approximately 8:45 p.m., while this exchange was taking place at the police precinct, the three police officers who were positioned at Munoz's apartment gained entry and secured consent to search from Munoz's father.
After waiting outside of the apartment for a period of time, Munoz's brother, Christopher Munoz (" Christopher" ), and a female companion left the apartment. The police approached them and asked to go inside in order to avoid " put[ting] their business out in the hallway."  Christopher invited the officers inside where they learned that Alipio Munoz (" Alipio" ), the registered tenant and Christian and Christopher's father, was in the living room
towards the back of the apartment. They asked who else was present in the apartment but did not conduct a security sweep.
Gilberto Gonzalez, a friend of the family who was renting a room in the apartment, returned home at least several minutes later. He speaks both Spanish and English and agreed to translate so that the police could communicate with Alipio, who speaks Spanish and broken English. Through Gilberto, the police explained to Alipio that they were there to retrieve a gun that Munoz had left in the apartment and they requested consent to search. Gilberto testified that the police warned Alipio that they were waiting for a warrant and said that if the warrant arrived before they obtained consent to search and they found the gun, " they were going to arrest everyone who was in the house."  Officer Fidanza, in contrast, said that she told Alipio that " with a search warrant everyone in the apartment was subject to getting arrested since that's the law, and [that] he seemed to understand." 
In any event, Alipio verbally granted the police permission to search the area where Munoz slept. He later signed a Spanish language consent form. Shortly after the officers began their search, an officer at the precinct with Sergeant Pasquale sent a text message to one of the officers on the scene informing him that, according to Munoz, the gun was located in a bag on the desk chair. The police then retrieved the gun.
At approximately midnight, Officer Fidanza read Munoz the Miranda warnings, which Munoz waived. He then admitted verbally and in writing to having purchased the gun.
I. Probable Cause to Arrest Munoz
The Fourth Amendment permits a police officer to make an " investigatory stop of persons or vehicles" where the officer has " reasonable suspicion to believe that criminal activity 'may be afoot.'"  Reasonable suspicion is based on whether an officer had a " 'particularized and objective basis' for suspecting legal wrongdoing"
considering the totality of the ...