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United States v. Cushnie

United States District Court, S.D. New York

December 31, 2014



PAUL G. GARDEPHE, District Judge.

Defendant Donald Cushnie is charged with failing to register as a sex offender, in violation of 18 U.S.C. § 2250. (Indictment (Dkt. No. 6)) Cushnie has moved to suppress his post-arrest statements and evidence obtained from his apartment at the time of his arrest. For the reasons stated below, Cushnie's motion will be denied in its entirety.



In support of his motion to suppress, Cushnie submitted his own declaration and that of his wife, Lisa Manago. Together, their declarations set forth the following version of events: On October 3, 2013, Cushnie and Manago were residing at Apartment 6J, 259 West 144th Street in Manhattan. (Cushnie Decl. (Dkt. No. 15) ¶ 3; Manago Decl. (Dkt. No. 22) ¶ 2) When law enforcement officers knocked on the couple's door Manago opened it, and "the officers proceeded to let themselves into the apartment." (Manago Decl. (Dkt. No. 22) ¶ 3) The officers did not seek or obtain consent to search the apartment from either Manago or Cushnie. (Id.; Cushnie Decl. (Dkt. No. 15) ¶ 6)

After entering the apartment, officers ordered Manago and her three children out of the apartment. (Manago Decl. (Dkt. No. 22) ¶ 4; Cushnie Decl. (Dkt. No. 15) ¶ 4) Three officers accompanied Manago and her children into the hallway, while four others remained in the apartment. (Manago Decl. (Dkt. No. 22) ¶ 6) Manago and her children sat in the hallway for approximately forty minutes. (Id. ¶ 5) During that time, an officer came out of the apartment and asked Manago to sign a consent to search form. (Id. ¶¶ 7-8) Manago refused. (Id. ¶ 8) Officers later led Manago and her children back into the apartment and proceeded to "rummage[] through boxes of [her] personal property." (Id. ¶ 9-10) Manago refused to answer the officers' questions about the property. (Id. ¶¶ 11-12)

While in the apartment, officers seized Cushnie's cell phone, wallet, and a set of car keys. (Cushnie Decl. (Dkt. No. 15) ¶ 5) Cushnie was arrested and then interrogated. (Id. ¶ 7) Cushnie denies waiving his Miranda rights, "as evidence[d] by [his] refusal to sign the Miranda waiver [form]." (Id. ¶ 8)


On July 1, 2014, the Court conducted an evidentiary hearing concerning Cushnie's suppression motion. The Government called Senior Inspector Nicholas Ricigliano of the United States Marshals Service's ("USMS") New York/New Jersey Regional Fugitive Task Force, and Senior Inspector Michael Romani of the USMS's Sex Offender Investigations Branch. The Defendant and his wife also testified. The evidence offered at the hearing included the following:

In June 2013, an arrest warrant was issued in this District for the Defendant's arrest based on his alleged violation of the terms and conditions of his supervised release. (Suppression Hearing Transcript ("Hearing Tr.") (Dkt. No. 31) at 7, 34-35) On October 3, 2013, with the help of a GPS tracking warrant, [1] the USMS determined that Cushnie was in Manhattan at Apartment 6J, 259 West 144th Street, which is a six-floor, multi-unit building. (Id. at 8-9) At about 6:00 a.m., approximately seven law enforcement officers gathered in the hallway outside Apartment 6J to execute the arrest warrant. (Id. at 9-10, 37) Senior Inspectors Ricigliano and Romani were both present. (Id. at 9, 17)

Ricigliano testified that he knocked on the door - softly at first - "to try to generate some movement in the apartment." (Id. at 10) After receiving no response, he "knocked loudly and announced that it was the police with a warrant." (Id.) Manago testified that she "was woken up by a bang at the door." (Id. at 65) She further testified that one of the officers screamed: "Open the fucking door. Open the fucking door. Open the fucking door now. Now open the fucking door." (Id.)

Manago - who testified that she was "scared" - opened the door. (Id.) The officers were holding guns (including pistols and a rifle), a ballistic shield, and a metal device for opening doors that made a noise as it pressed against the door. (Id. at 13, 37-38, 65) Manago testified that the officers "told [her] to get the hell out of [her] house and get in the hallway." (Id. at 65) Manago, her two daughters, and her niece then went into the hallway outside the apartment, where they remained for "almost up to an hour." (Id. at 13, 40, 66)

Upon entering the apartment, the marshals encountered Cushnie in the living room. (Id. at 14) He was wearing a "[t]-shirt" and "boxer shorts." (Id. at 15) The marshals instructed Cushnie to get on the ground, and he complied. (Id. at 15, 39) He was then handcuffed. (Id. at 15, 40) According to Ricigliano, after Cushnie was handcuffed, "[w]e proceeded past Mr. Cushnie. We left the one or two deputies with Mr. Cushnie, proceeded past Mr. Cushnie to continue on with our protective sweep of the apartment to make sure there was nobody else in there." (Id. at 15) Ricigliano observed a wallet, car keys, and a cell phone in Cushnie's immediate vicinity (approximately two or three feet away from him). (Id. at 15-16, 28) Ricigliano picked up these items "[o]nce we finished with our protective sweep." (Id. at 28) These items were thus seized after Cushnie was handcuffed and before officers asked Manago for her consent to search the apartment. (Id. at 28, 42-43)

Ricigliano testified that he read Miranda warnings to Cushnie from a printed form (Gov't Ex. 1) after the protective sweep. (Id. at 15-16) Ricigliano read the form verbatim and in a "normal" tone of voice, with his weapon holstered. (Id. at 17) Cushnie was seated on the floor and was "calm [and] composed" when Ricigliano read the form to him. (Id. at 18, 47) Inspector Romani testified that Ricigliano's tone was "[p]urely conversational." (Id. at 58)

Romani and Ricigliano both testified that after Ricigliano read the Miranda warnings, he then read the following language from the form: "I have read this statement of my rights, and I understand what my rights are." Cushnie responded, "Yeah" and nodded. (Id. at 18, 43, 53) Ricigliano testified that he next asked Cushnie, "Do you understand your rights?" Cushnie replied, "Yeah" and nodded. (Id. at 44) Ricigliano then asked Cushnie to sign the signature line immediately below that text, but Cushnie said that he would not sign anything. (Id. at 18, 44, 53) Ricigliano then asked, "But you do understand you don't have to talk to us?" Cushnie replied "Yeah" and nodded. (Id. at 18, 45)[2]

Ricigliano next read the form's text below the heading "Waiver of Rights":

I have read the above statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

(Id. at 18; Gov't Ex. 1) Cushnie again replied, "Yeah" and nodded. (Hearing Tr. (Dkt. No. 31) at 19) When Ricigliano asked Cushnie to sign on the signature line under the "Waiver of Rights" heading, Cushnie again told Ricigliano that he would not sign.[3] (Hearing Tr. (Dkt. No. 31) at 19, 44-45) Romani testified that Cushnie was "attentive" and "actively listening to" Ricigliano during this exchange. (Hearing Tr. (Dkt. No. 31) at 58) According to Ricigliano, one or two minutes later he asked Cushnie whether the cell phone the marshals had recovered belonged to him. Cushnie said "no." (Id. at 19)

Ricigliano asked Cushnie additional questions "about two hours" later in the cell block at 500 Pearl Street in lower Manhattan. (Id. at 19, 45-46) Ricigliano did not administer Miranda warnings at this time. (Id. at 46) Ricigliano testified that Cushnie never stated that he did not want to answer questions or that he wanted to speak with a lawyer. (Id. at 19-20) Although the Complaint indicates that Cushnie made several incriminating statements during questioning at 500 Pearl Street, neither side elicited testimony at the suppression hearing concerning the content of those statements.[4]

Cushnie testified that he does not recall ever receiving Miranda warnings on October 3, 2013, the day of his arrest. (Id. at 87, 93, 96) He explained that he is familiar with Miranda warnings, having been read Miranda warnings on "several" occasions before October 3, 2013. (Id. at 87-88, 93-94) Cushnie further testified that he never told any law enforcement officers on October 3, 2013, that he was waiving his Miranda rights. (Id. at 88)

Ricigliano testified that "a minute or two after [he] gave [Cushnie] the Miranda warning[s], " Cushnie got dressed. (Id. at 20) A marshal handed Cushnie a pair of jeans to wear. The jeans had been laying on a bed in the living room. (Id.) Before giving the jeans to Cushnie, the marshal searched the pockets and discovered "dozens of what [officers] believed to be Oxycontin pills." (Id.)

After this discovery, Romani told Manago - who was still in the hallway - that drugs had been found in Cushnie's pants. (Id. at 54) Romani testified that he "asked Ms. Manago if she would be willing to consent for us to conduct a search of the apartment in regards to additional narcotics." (Id. at 54, 61-62, 21) Romani's weapon was holstered at the time, as were those of other officers. (Id. at 56) He testified that she replied: "You can search, you're not going to find anything, and if you do, it's not mine." (Id. at 54, 61-63) According to both Romani and Ricigliano, Romani then produced a consent to search form, read the form "verbatim" to Manago, showed her the form, and asked her - in a "normal conversational" tone - to sign it. (Id. at 23-24, 54-55) Romani testified that she replied, "You can search my apartment, but I'm not signing anything." (Id. at 56) Ricigliano offered a similar account: "She said, I'm not signing anything... You can search all you want, you're not going to find anything.' And I believe [Romani] asked her again if she would sign the form, and she said, You ain't going to find anything, but you can look.'" (Id. at 24) Ricigliano and Romani testified that Manago appeared "agitated" and "confrontational to some extent" during this exchange. (Id. at 47, 56) Romani wrote the following statement on the consent to search form: "Verbal consent granted, refused to sign form. Witnessed by [Senior Inspector] Romani, [Deputy United States Marshal] Grogan, [Senior Inspector] Ricigliano." (Id. at 23-24; Gov't Ex. 2)

Ricigliano testified that Manago was present while officers searched the apartment and never asked the marshals to stop searching. (Id. at 25) Ricigliano further testified that - during Cushnie's 2011 arrest - Manago had refused to sign papers acknowledging that she had taken custody of Cushnie's property. (Id. at 7, 29, 33)

Manago testified that she never gave anyone authority to search her apartment. (Id. at 67) She further testified that, although Romani showed her a form, he "didn't read a form to me. He told me this is a form for me to sign to give - for consent for them to come in my house and search my house." (Id. at 84-85). She added that: "He said that if I don't cooperate with them, that they're going to - whatever they find in my house, they're going to lock me up... with my husband." (Id. at 85)

The marshals' search of the apartment yielded "an unmarked bag with several hundred pills that [they] believed were some form of muscle relaxer."[5] (Id. at 28-29) Cushnie - who was in the apartment when the officers ...

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