Opinion
CRIMINAL NO. 00-10392-PBS.
October 17, 2001.
MEMORANDUM AND ORDER
Defendant Shawn Garner has filed a motion to suppress the fruits of two searches conducted at 98 Woodledge Street, Boston, Massachusetts, on July 28, 2000 (Docket No. 30), on the ground that neither he nor his girlfriend gave consent for the warrantless entry. He also moves to suppress his statements given at the police station (Docket No. 32) because he claims he was not advised of his Miranda rights prior to giving the statements and that the statements were given involuntarily as a result of false promises by the police.
Defendant is charged in a multi-count indictment with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count One); possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k) (Count Two); possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count Three); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Four).
This Court held a hearing on July 2, July 3 and July 16, 2001, at which Sergeant Detective Daniel P. Linskey, Patrolman Michael Gill, Detective Daniel F. MacDonald, Detective Winifred Cotter, Officer Kenneth L. Hearns, Detective Roy Frederick, and Patrolman Paul Quinn, all of the Boston Police Department, and Emeliza Sabater, the defendant's girlfriend, testified. After reviewing the evidence and assessing the credibility of the witnesses, the Court DENIES both motions.
FINDINGS OF FACT
On the night of Thursday, July 27, 2000, or early morning hours of Friday, July 28, 2000, while traveling home from his shift, Sergeant Detective Daniel Linskey ("Linskey"), who supervises the Drug Control Unit in Area B2 in Roxbury and Dorchester, was paged by a confidential informant who had provided reliable information in the past. This informant told Linskey that an African-American male, age 25 — 30, whom the informant identified as Shawn Garner, had been selling crack cocaine out of his girlfriend's apartment on Woodledge Street, Dorchester, Massachusetts. The informant identified the defendant's girlfriend as a young Hispanic female, and explained that her apartment was located in the last building on the right- hand side of Woodledge Street, a dead-end street, on the right- hand side of the first floor. The informant also told Linskey that his associates had seen a little boy who lives in that apartment carry two firearms out of the house and into the street, where he played "cops and robbers" with another boy until a relative took the guns away.
On Friday, July 28, Linskey, accompanied by Detectives Daniel MacDonald and Winifred Cotter and Officers Mike Gill and William Smith, proceeded to the last building on the right-hand side of Woodledge Street, number 98. Gill and MacDonald went to the back of the multi-unit building, while Linskey, Cotter, and Smith, a trained Marine, proceeded inside to the apartment on the right-hand side of the first floor, apartment 1R. Linskey and Cotter were dressed in plainclothes, with their guns and badges showing. Smith was dressed in uniform. They did not have a search or arrest warrant.
The door was slightly ajar and loud music was booming from the apartment. After Linskey knocked several times on the door frame, an African-American male (Shawn Garner) answered the door. When Linskey asked him to turn down the music, the man went out of Linskey's sight for a moment, turned down the volume, and returned to the doorway. Linskey identified himself and asked the defendant if it was his apartment. When the defendant answered affirmatively, Linskey told the defendant that the officers were investigating something and asked if they could come in and speak with him. The defendant stated, "Okay," stepped back, and extended his right hand as if to gesture them down the hallway away from the living room. The officers did not cross the threshold until then.
As the officers walked down the hallway toward the kitchen, a young Hispanic female (Emeliza Sabater) came into view in the doorway of the kitchen. Linskey identified himself and asked if this was her apartment. When she said yes, Linskey requested to speak with her; she nodded, and the officers moved towards the kitchen. The woman closed the door to what turned out to be her bedroom. No children were at home.
Linskey explained that he had received information about a child from their apartment who was playing outside with real firearms. In response, both the defendant and Sabater said they did not know about the boy playing with guns and that there were no guns in the house. Sabater told Linskey that she had a four- year-old son who lived with her. During this conversation, Linskey observed that Sabater was making eye contact with the defendant before answering questions and appeared to Linskey to be extremely nervous. When Linskey asked to speak with her alone, she agreed, and opened the door to her bedroom.
It was later discovered that the boy who had been playing with the guns was Shawn Garner's seven-year-old son, Shawn Swain- Garner, who lives with his mother in Lynn, Massachusetts.
As they entered the room, Sabater quickly walked over to the waist-high bureau, pushed down an object on top of it, and fidgeting, turned around to face Linskey while sitting on or leaning against the bureau with her hands behind her back. Concerned that she might have a gun, Linskey asked to see her hands. When she showed her empty hands, Linskey asked her to step out of the way of the dresser. There, he observed a picture frame knocked over on the bureau but propped up two inches by a bottle of nail-polish remover.
Without touching the picture frame, Linskey bent down to get a better view and saw a plastic bag containing six individually wrapped bags of crack cocaine. Lifting up the frame to remove the cocaine, and uttering a profanity, he said, "You're under arrest. This is exactly why I'm here and I know there are two guns here and some kids are going to get hurt." He then placed her and then the defendant under arrest. When they were handcuffed, Detective Linskey read defendant his Miranda rights from a preprinted card. Defendant again stated, "There are no guns in the house." At approximately 2:50 p.m., they were taken to the police station for booking. Linskey froze the apartment by posting officers there, and began the process of obtaining a search warrant.
At the station, the defendant and Sabater proceeded to the separate male and female booking areas. Prior to booking, while the defendant was handcuffed to a stationary cuff on the wall, Linskey spoke with him again. Linskey remembers Mirandizing defendant again from his preprinted card. He informed the defendant he was going to get a search warrant and search the house with the "best drug dog in the world" and stated, "If you want to be a man, step up to the plate." The defendant admitted that he had more cocaine in the house, and that it was his, not Sabater's. He reiterated that there were no guns in the house and that he did not know anything about the guns. After the defendant explained that Sabater was not involved, Linskey said he would speak to the prosecutor about cutting her out of the case, but made no promises.
It is not clear to me that Linskey is remembering this correctly because the affidavit in support of the search warrant does not mention this second reading of Miranda rights. (In contrast, it does record the first reading.) However, even if his memory is inaccurate, Linskey read defendant his Miranda rights back in the kitchen.
Shortly thereafter, around 3:10 p.m., the defendant moved through the formal booking process, and was again advised of his Miranda rights. As part of the booking process, the defendant signed a paper indicating that he understood those rights.
Linskey obtained a search warrant from the Roxbury District Court later that afternoon, citing the confidential informant's tip, the drugs found under the picture frame, and the defendant's statements. He returned to Woodledge Street, where other members of the Drug Control Unit were awaiting his arrival. The Unit searched the apartment and the common areas of the building, uncovering $5,084.00 in United States currency ($4800 found on the bed in Sabater's room), assorted packages of crack and powder cocaine in excess of 100 grams, two loaded .9 millimeter firearms (one without a serial number), a quantity of marijuana, and various personal items and documents. The officers found the firearms in a cigar box, along with a quantity of crack cocaine, a razor blade, a document containing handwritten notations that the officers referred to as a "crib sheet," and two bail slips, one of which had the defendant's and Sabater's names on it. The bail slips were under the drugs. The cigar box was tucked into a deep hole in the back of a laundry area under the stairs in a basement common area. Linskey did not plant the guns or the bail slips in the cigar box.
While Sabater testified she placed the bail slips in her locked jewelry box the night before the arrest, defendant had access to the key. He was also present in the apartment when she went out clubbing that night. Further, Sabater may well have been confused because there was another court paper in the jewelry box. I find that Linskey and Quinn and the other officers were credible in their testimony concerning the sequence of the search. The argument that behind the other officers' backs, Linskey surreptitiously purloined the bail slips from the jewelry box in the upstairs bedroom closet, took them down into the basement, and planted them under the drugs and guns in the cigar box in the basement is far fetched. There is no credible evidence to support a reasonable inference that any police officer framed the defendant by planting evidence.
In July, 2000, at the time of the defendant's arrest, Sabater and the defendant had been in a serious dating relationship for about a year. Although Sabater's name was the only one on the lease, the defendant spent many nights at the apartment as an invited guest, kept clothes and personal belongings there, used one of the closets for his belongings, and had a key that allowed him to enter and leave as he wished. At the time of the hearing in early July, 2001, Sabater testified that the defendant was still her boyfriend.
DISCUSSION
The defendant contends that the initial entry into the apartment and subsequent seizures violated his rights under the Fourth Amendment to the United States Constitution. He contends that the officers conducted the initial entry absent exigent circumstances, without a warrant, and without the consent of the defendant or any other authorized occupant. He further contends the items discovered and seized following the initial entry, as well as the statements made following his arrest, are the fruits of the initial illegality.
The government does not contest standing with respect to the apartment. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1970) (holding that an overnight guest in a home has a reasonable expectation of privacy even though it is not his own home). It does contest standing with respect to the common area. This will be discussed later.
A. Initial Warrantless Entry and Seizure
Generally, a warrantless search or seizure of a person's home is presumptively unreasonable and prohibited by the Fourth Amendment. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306 (1990); Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797 (1990); United States v. Jones, 187 F.3d 210, 219 (1st Cir. 1999). There are, however, "a few specifically established and well-delineated exceptions" to the warrant requirement. Id. (citing Horton, 496 U.S. at 133 n. 4, 110 S.Ct. at 2306 n. 4). One such exception is the "plain view doctrine," in which the seizure of an object already in plain view does not involve a Fourth Amendment invasion of privacy. Horton, 496 U.S. at 133, 110 S.Ct. at 2306.
The Supreme Court has articulated, and the First Circuit discussed, the three elements which comprise the plain view doctrine. See, e.g., id. at 136-137, 110 S.Ct. at 2308; Jones, 187 F.3d at 219-221. "First, the officer must have lawfully reached the position from which he plainly could view the seized object." Jones, 187 F.3d at 219. "Second, the seizure must satisfy the probable cause standard." Id. at 220. "Finally, the plain view exception to the warrant requirement necessitates the officer `have a lawful right of access to the object itself.'" Id. at 221 (quoting Horton, 496 U.S. at 138, 110 S.Ct. at 2308.) To constitute a legal seizure, the warrantless seizure of the six individually wrapped bags of crack cocaine must meet these three requirements.
1. Entry into apartment and bedroom
To justify the warrantless seizure, the officers must first have gained lawful entry into Sabater's apartment and bedroom, so that Linskey could plainly view the seized object. Id. at 219. Officers may seize property without a warrant if they perceive it while engaging in a lawful activity. Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1542 (1983) (plurality).
Police need not obtain a warrant to enter a person's home when that person voluntarily consents to the entry. Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973)). Either the individual whose property is searched or a third party who possesses common authority over the premises may consent. Id. (citing Schneckloth, 412 U.S. 218, 93 S.Ct. 2041; United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993 (1974)). "Common authority" over the premises rests "on mutual use of the property by persons generally having joint access or control for most purposes. . . ." Id. (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7). The Supreme Court has upheld warrantless searches where police officers reasonably, though erroneously, believed that the person from whom they obtained consent was a resident of the premises. Id. at 186, 110 S.Ct. at 2800.
Though the defendant's name was not on the lease, he kept belongings in the apartment, could come and go as he wished using a key that Sabater had given him, spent nights over at the apartment, and would go there even if Sabater was not there. In addition, the defendant told the officers that it was his apartment, leading them to reasonably believe that he was a resident at the premises.
Consent must be voluntary, without duress or coercion. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-2048. Voluntariness "turns on an assessment of the totality of the circumstances." United States v. Barnett, 989 F.2d 546, 554-555 (1st Cir. 1993). This includes "individualized factors bearing on the vulnerability of the consenting party," whether the person was informed of his or her constitutional rights, and whether permission was obtained by coercive means or under coercive circumstances. Id. at 555.
Here, the defendant consented to the officers' presence in the apartment. After the defendant had turned down the music and returned to the door, Linskey identified himself and asked if he and the officers could come in and speak with the defendant. The defendant consented, both by answering "Okay," and by motioning for Linskey to enter the apartment.
Linskey also obtained consent to enter the closed bedroom. Sabater disputes the testimony of Linskey and the other officers regarding her consent to enter the bedroom. In testimony, Sabater stated that she agreed to speak with Linskey, but that he directed her into the bedroom by opening the bedroom door. Linskey and Detective Cotter each testified that Sabater agreed to speak with Linskey, opened the door to the bedroom, and led Linskey inside. I find that Linskey and Cotter are more credible. When Linskey asked if he could talk with her privately, Sabater agreed and opened the door to her bedroom.
Sabater's account of her ignorance of the crack cocaine in her bedroom and of her actions in the bedroom during questioning is not credible. Sabater testified that she had no knowledge of the presence of crack cocaine on top of her bureau or anywhere in her house. She had, however, been cleaning her room when the officers arrived, had just emptied out all of the bureau drawers onto the bed, and could name precisely where certain other objects were located on the bureau. When she entered with Linskey, she made a beeline for the bureau. Sabater also stated that she did not push the picture frame down on the bureau to cover the crack cocaine, but rather sat on the bureau, causing the frame to topple backwards and coincidentally to conceal the cocaine. However, even if Sabater did not know about the crack cocaine, Linskey was reasonable in asking her to step aside to protect his own security by checking for a gun in these circumstances where the investigation involved a firearm.
Indeed, this incredible testimony was a factor undermining her credibility on the consent-to-enter-the-bedroom factual dispute.
There is no indication that the officers used coercive tactics to persuade the defendant or Sabater to allow them into the apartment. Though Sabater once stated that she was "scared and intimidated," she also testified that Linskey was polite, treated her with respect, did not try to bully her, that she never asked him to leave, and that she did not make any objections to his presence in her kitchen. The officers' guns were not drawn and the defendant and Sabater were polite and cooperative in answering his questions. Although Linskey did not inform the defendant or Sabater of their right to refuse entry and withhold consent, the officers were not required to give that information. See United States v. Esquilin, 208 F.3d 315, 318 (1st Cir. 2000) ("it is not essential that the officers first inform the consenting party of the right to withhold consent") (quoting Barnett, 989 F.2d at 554-555).
Although there is no evidence that Linskey threatened, bullied or tricked Sabater to procure her consent to enter the bedroom, defendant argues that the situation was inherently coercive because Sabater was confronted with three police officers in her kitchen. Sabater conceded that she agreed to the private talk. She is the one who opened the door and headed into the bedroom. She could just as easily have gone into the living room or her kids' room for the private tete a tete. I find that her choice to permit him to enter the bedroom to talk to her was "the product of an essentially free and unrestricted choice." United States v. Chhien, 2001 WL 1097766 at *4 (September 24, 2001).
In short, the totality of the circumstances indicates that the defendant granted the officers consent to enter the apartment and Sabater granted Linskey consent to enter the bedroom. From this position, Linskey observed Sabater trying to shield something on the bureau with the picture frame and her body. He asked her to move away, and saw, under the frame but in plain view on the bureau, the packages of crack cocaine.
2. Probable Cause
The second element of the plain view doctrine is that the seizure must satisfy the probable cause standard. Jones, 187 F.3d at 220; Soldal v. Cook County, 506 U.S. 56, 66, 113 S.Ct. 538, 546 (1992). As the Supreme Court has articulated:
Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.
Jones, 187 F.3d at 220 (quoting Brown, 460 U.S. at 742, 103 S.Ct. at 1543).
Here, Linskey could see the six packets of crack cocaine beneath the picture frame. Linskey entered the apartment with the suspicion that the defendant was dealing cocaine from the apartment, based on the confidential informant's tip. Linskey had substantial experience and training in recognizing crack cocaine and its packaging. As a result, Linskey had probable cause to believe that the object he saw beneath the picture frame was contraband.
3. Lawful Right of Access
Finally, "the officer [must] `have a lawful right of access to the object itself.'" Jones, 187 F.3d at 221 (quoting Horton, 496 U.S. at 138, 110 S.Ct. at 2308). "`Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.'" Horton, 496 U.S. at 135, 110 S.Ct. at 2307 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037 (1971) (plurality)); see also Brown, 460 U.S. at 738- 739 n. 4, 103 S.Ct. at 1541-1542 n. 4 (noting that the police have legal access to property and contraband they come across while acting pursuant to an exception to the Warrant Clause).
Here, the officers lawfully entered the apartment, under the consent exception to the Warrant Clause. While questioning Sabater, Linskey, a trained narcotics officer, observed the contraband in plain view on Sabater's bureau. He therefore had the legal right to seize the contraband.
B. Subsequent Search
Absent any illegality in the initial warrantless entry and seizure, the subsequent search of the apartment, supported by valid warrant, presents no grounds for suppression.
The search warrant did not authorize the police to search the laundry room of the apartment building (in which the police found the cigar box with the drugs, money, guns, and bail slips with the defendant's and Sabater's name). However, the defendant lacks standing to challenge this search. "[D]efendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549 (1980). A defendant must have a reasonable expectation of privacy in an area to object to the search of that area. "It is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building." United States v. Brown, 169 F.3d 89, 92 (1st Cir. 1999) (finding no reasonable expectation of privacy in stairway common area); United States v. Hawkins, 139 F.3d 29, 32- 33 (1st Cir. 1998) (basement common area); Commonwealth v. Thomas, 358 Mass. 771, 774, 267 N.E.2d 489, 491 (cellar laundry area). Defendant, thus, may not object to the search of the laundry room or seek to exclude the fruits of that search.
C. Motion to Suppress Statements Made to the Police
Defendant also moves to suppress the statements he made to Linskey at the police station after his arrest on July 28, 2000. He contends that the police violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Defendant claims that these violations occurred because he made the statements prior to being advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). He also claims the statements were made as a result of false promises by the police, and thus were involuntary. See United States v. Jackson, 918 F.2d 236, 241-242 (1st Cir. 1990). According to the defendant, Linskey told him that if he revealed where the rest of the cocaine was located in the apartment, Emeliza Sabater would not be arrested.
A defendant may waive his Miranda rights if the waiver is made voluntarily, knowingly, and intelligently. United States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000) (citing Miranda, 384 U.S. at 444, 86 S.Ct. at 1612). Voluntariness is determined by looking at the totality of the circumstances, "including any promises or threats made by police officers or the prosecution, in order to see whether the will of the accused was overborne." Jackson, 918 F.2d at 241-242 (citing Bryant v. Vose, 785 F.2d 364, 367-68 (1st Cir. 1986); 18 U.S.C. § 3501(b) ("The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession . . .")). The government has the burden of proving waiver by a preponderance of the evidence. Palmer, 203 F.3d at 60 (citing Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522 (1986)).
The defendant's allegations have no merit. Linskey read the Miranda warnings to the defendant off a preprinted card while in Sabater's apartment, before questioning him at the police station. The defendant indicated that he understood the warnings. Linskey also remembers reading the Miranda rights to the defendant before speaking with him at the station, although his memory may not be correct on this point. The defendant, who had prior convictions for offenses involving firearms and violence, see Ex. 20, does not claim that naivete or ignorance prevented him from understanding the Miranda rights. The defendant provides no evidence that he was scared, upset, intimidated, or otherwise not acting with full competency.
The defendant does assert that Linskey falsely promised not to arrest Sabater if the defendant would volunteer information; defendant claims his statements were consequently involuntary or coerced. This assertion does not withstand scrutiny. As the defendant knew, Linskey could not have declined to arrest Sabater — Sabater had already been arrested and transported to the women's section of the police station. Though Linskey said he would convey to the prosecutor the defendant's information that Sabater was not involved, so that Sabater might not be prosecuted for the cocaine, he said this after the defendant made his statements. The totality of the circumstances reflects that the defendant made his statements to Linskey knowingly, voluntarily, and without coercion, thus waiving his Fifth Amendment rights.
ORDER
Defendant's Motion to Suppress this evidence (Docket No. 30) is therefore DENIED. The motion to suppress his statements (Docket No. 32) is also DENIED.
PATTI B. SARIS United States District Judge