Opinion
Criminal Nos. 3:04cr336 (MRK), 3:06CR100(MRK).
August 2, 2006
RULING AND ORDER
In two separate indictments, Defendant Tranel McCoy is charged (in the first indictment) with conspiracy to possess with intent to distribute five (5) grams or more of a substance containing a detectable amount of cocaine base, and (in the second indictment) with possession with intent to distribute five (5) grams or more of a substance containing a detectable amount of cocaine base, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking crime. Mr. McCoy filed a Motion to Suppress the following evidence in both cases:
1. Oral statements given by the defendant at the time of his arrest on the first indictment in or about November 10, 2004;
2. All physical evidence seized by law enforcement authorities of the State of Connecticut in effecting the execution of a search and seizure warrant on December 20, 2005 at the defendant's apartment in Hartford, Connecticut; and
3. Oral statements given by the defendant at the time of the execution of the search and seizure warrant on December 20, 2005 to State of Connecticut law enforcement officials.
Defendant's Motion to Suppress and Supporting Memorandum [doc. # 354] at 1. The Court held an evidentiary hearing on Mr. McCoy's motion on July 28, 2006. Since Mr. McCoy's trial would commence on August 4, 2006, the Court orally ruled on his Motion following jury selection on August 1, 2006. At that time, the Court stated that it would issue a written decision in accordance with the oral ruling. For the reasons stated on August 1, 2006 and in this decision, the Court DENIES Mr. McCoy's Motion to Suppress [doc. # 354] in its entirety.
I.
At the evidentiary hearing on Mr. McCoy's motion, the Government called FBI Special Agent Richard Bornstein and Hartford Police Detectives Richard Kevin Salkeld and Patrick Farrell. Mr. McCoy did not testify at the hearing or call any witnesses. The following facts were developed from the law enforcement testimony and from several exhibits admitted into evidence at the hearing.
Arrest on November 10, 2004. Agent Bornstein testified that, as a result of a wiretap investigation into an alleged drug conspiracy, a federal grand jury in November 2004 indicted approximately 62 individuals, and he, among others, was tasked with effectuating the arrest of the indicted individuals, including Mr. McCoy. Agent Bornstein testified that he first tried to arrest Mr. McCoy at 64 Earl Street, but Mr. McCoy was not present at that address. Agent Bornstein then continued with other arrests. Later that day, Agent Bornstein called a cell phone number that he believed to be Mr. McCoy's cell phone, and someone whom Agent Bornstein assumed to be Mr. McCoy answered the phone. Agent Bornstein said that he was a law enforcement officer and needed to speak with Mr. McCoy. Mr. McCoy advised Agent Bornstein that he was located at 40 Elmer Street in Hartford, Connecticut. Agent Bornstein and Special Agent Aldenberg arrived at 40 Elmer Street at approximately 3:45 p.m. and spoke first with Mr. McCoy's wife. Mr. McCoy then descended the stairs from his second-floor apartment to meet the agents as they stood in the foyer of the apartment house at 40 Elmer Street. He was very cooperative. Agent Bornstein told Mr. McCoy that he was under arrest and placed him in handcuffs without incident. No guns were drawn and in the words of Agent Bornstein, everything was very cordial — an "uneventful arrest."
After learning from the Assistant United States Attorney that he should bring Mr. McCoy to the federal courthouse for his initial appearance that day, Agent Bornstein led Mr. McCoy from the apartment house to the agent's car. Mr. McCoy was told that he was being transported to federal court so he could appear before the Magistrate Judge for his first appearance. After Mr. McCoy had been placed in the rear seat of the car, Agent Bornstein read Mr. McCoy his Miranda rights from a card that the agent always carries with him. Agent Bornstein is an experienced agent, and he said that he does not always read arrestees their rights upon being placed in his car. He did so this time because Mr. McCoy was being very cooperative, and Agent Bornstein wanted to ensure that Mr. McCoy was "properly Mirandized" so that any statements he made could be used in later proceedings. According to Agent Bornstein, Mr. McCoy was read his Miranda rights within ten minute of being arrested.
At the hearing, Agent Bornstein pulled out the card and listed the rights that he had recited to Mr. McCoy. Specifically, Agent Bornstein informed Mr. McCoy of the following: that he had the right to remain silent; that anything he said would be used against him; that he had the right to a lawyer; that a lawyer would be appointed for him if he could not afford one; and that he could decide at any time to stop speaking with the agents. Mr. Bornstein testified that his normal practice is to elaborate on each right as it is read to ensure that the individual understands each right, though he had no specific memory of doing so in this instance. After reciting those rights, Agent Bornstein recalled that he asked Mr. McCoy whether he understood his rights, and Mr. McCoy said that he did. Agent Bornstein also testified that while he could not recall if the phrase "waiver of rights" was used by Mr. McCoy, he did make an affirmative statement that he was willing to speak with the officers and forego his rights.
After being informed of his rights and while being transported to the federal courthouse, the agents asked Mr. McCoy if he knew Clayton Robinson, one of the alleged leaders of the drug conspiracy who was then and remains a fugitive. Mr. McCoy said that he was acquainted with Mr. Robinson and Daren Willis, another co-defendant, and that he had acquired crack cocaine from them, but that he did so for his friends and acquaintances, not for himself. According to Agent Bornstein, Mr. McCoy said that he was not a crack cocaine dealer and made several statements that sought to minimize his role in the alleged drug conspiracy. These statements are the subject of the motion to suppress. Agent Bornstein testified that Mr. McCoy was approximately 28 years old at the time he was arrested, that he had a prior criminal record, that he spoke English, that he did not appear to be under the influence of drugs or alcohol, and that he had no difficulty understanding what the agents were saying to him.
Search Warrant in December 2005. Mr. McCoy was arraigned on the charges that form the indictment in 04cr336 (MRK) and was released on bond by the Magistrate Judge, subject to electronic monitoring. On December 13, 2005, Hartford police sought a warrant to search the premises at 40 Elmer Street where Mr. McCoy was living. The warrant application, which was marked as Defendant's Exhibit 2 at the hearing, was signed by Detectives Farrell and Salkeld, both experienced police officers. The warrant application recited that, in late November or early December 2005, a "registered, confidential, reliable" informant notified police that crack cocaine was being kept at and sold at 40 Elmer Street. The warrant application stated that the affiants had used the informant on other occasions and that he was a "knowledgeable, street wise person familiar with the manner and method in which illegal drugs are packaged for street level sales." According to the officers, an informant is registered after completion of a background search. Detective Farrell had cultivated this particular confidential informant in the summer or early fall of 2005, and both Detectives testified that he had provided them with reliable information on several prior occasions.
Hartford police conducted surveillance at the 40 Elmer Street apartment and observed individuals entering and leaving the apartment in a manner that was consistent with on-going narcotics activity. Police then arranged to have the informant make two controlled purchases. Each time, police did the following: they searched the informant to ensure that he had no narcotics on him; they gave the informant U.S. Currency; they directed him to 40 Elmer Street and watched the informant as he entered the apartment house; they then observed the informant leave the apartment house shortly thereafter; and they again searched the informant and each time recovered a white rock that tested positive as crack cocaine. Furthermore, on each occasion, the informant described purchasing crack cocaine from a black male known as "Big Boy" located in the second floor apartment at 40 Elmer Street.
On the basis of the affidavit, Hartford police obtained a search warrant for the second floor apartment at 40 Elmer Street. At the time, Hartford police did not know that Mr. McCoy, who resided in the second-floor apartment, had been charged in the first indictment. According to both officers, neither pulled a rap sheet on Mr. McCoy because they were not certain that he was the "Big Boy" referred to by the informant. Hartford police did not learn about the federal charges against Mr. McCoy until after the search, which did not occur until December 20, 2005.
In the meantime, on December 13, 2005, federal authorities obtained an arrest warrant for the confidential informant who had engaged in the controlled purchases at 40 Elmer St. The informant was charged with being a felon in possession of a firearm, and he was arrested on December 13. Defendant's Exhibit 1. However, both Detective Farrell and Detective Salkeld testified that they did not become aware of the federal arrest of the informant until after the December 20 search of Mr. McCoy's apartment. Detective Farrell learned of the arrest after the search when he went to try to pay the informant for the information leading to Mr. McCoy's arrest. The informant would have been paid approximately $200-$250 for that information. Also unbeknownst to the Hartford police, the informant was later investigated and confronted in February 2006 with seeking to defraud federal authorities in connection with a controlled purchase of crack. Id. Search on December 20, 2005. On December 20, 2005, Hartford police executed a search warrant for the second-floor apartment at 40 Elmer St. Because police had information that there might be weapons in the apartment, Hartford's emergency response team led the entry into the apartment. They forcibly opened the front door to the apartment and found four adults and several children in the apartment. The officers proceeded to secure the apartment by placing the children in one room with an officer; the children were not handcuffed, and the door to the room remained closed. The four adults — Mr. McCoy, Teresa Stringer (Mr. McCoy's wife), Mr. Ball, and Ms. Stringer's brother — were patted down for weapons, handcuffed, and placed on a sofa in the living room. They were not placed under arrest but were held on the sofa to allow the search to proceed safely. Immediately adjacent to the living room is a bedroom with two large double doors that open into the living room. Both Detectives testified that the four adults on the sofa were able to watch the search of the bedroom while they were seated on the sofa, which was located quite close to the entrance to the bedroom.
There is no indication in the record or elsewhere that the Detectives knew or had reason to know that the confidential informant had or would attempt to defraud the Government. The act for which he was investigated and confronted occurred at the end of January, 2006, over a month after Mr. McCoy's apartment was searched.
The Detectives testified that, as they entered the bedroom, they saw a bag containing white rock or powder sitting in plain view on an entertainment center that was visible from the living room. See Government Exhibit A. Detective Farrell seized the bag, and it was ultimately placed in an evidence bag that was located in the living room. Both Detectives stated that neither announced that they had found crack cocaine, nor did they confront Mr. McCoy with their discovery. Instead, they remained silent and went about their tasks, perhaps asking for the presence of the police photographer and evidence officer. As Mr. McCoy's wife was watching the search and the seizure of the bag (which was later identified as containing crack cocaine), Mr. McCoy's wife became more and more upset and distraught. She said to Mr. McCoy that she had told him not to do this and that she was going to lose the children. At this point, Mr. McCoy said several times that his wife should calm down and not worry because the police "know it is mine" and that "you had nothing to do with it." According to the Detectives, Mr. McCoy did not whisper these words but rather said them loudly, as if he wanted to make sure the officers heard him. These statements by Mr. McCoy are the subject of Mr. McCoy's Motion to Suppress.
The search continued, and shortly thereafter, the Detectives also discovered a gun located in one of the drawers of the entertainment center. See Government Exhibit B. Mr. McCoy observed the discovery of the gun and without prompting from anyone, he said that the gun was not his, and he told Mr. Ball to tell the police that the gun belonged to Mr. Ball. Mr. Ball did not respond to Mr. McCoy's comments. These statements by Mr. McCoy are also the subject of the Motion to Suppress. At that point, Detective Salkeld went up to Mr. McCoy and asked him some questions about the gun. Since Mr. McCoy had not been given his Miranda warnings at that point, the Government does not seek to admit any of Mr. McCoy's statements in response to Detective Salkeld's questions. Once the search was completed, Mr. McCoy was placed under arrest. He was charged in state court and later indicted in the second indictment in this case.
II.
Mr. McCoy challenges the statements he gave to Agent Bornstein on November 10, 2004, and the statements he made on December 20, 2005, as contrary to his Fifth Amendment rights. He also seeks to suppress all of the physical evidence obtained during the December 20, 2005, search on the ground that there were material omissions in the warrant application that rendered the warrant invalid. The Court disagrees with each of Mr. McCoy's arguments.
A.
The Court recently has had occasion to discuss the standards that apply to Mr. McCoy's challenge to the admissibility of the oral statements he gave Agent Bornstein, and the Court will not repeat that discussion here. See United States v. Rivera, No. 3:05cr261 (MRK), 2006 WL 1980312 (D. Conn. July 13, 2006). Suffice it to say that the issue divides itself into three sub-issues: (1) Was Mr. McCoy warned concerning his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966); (2) Did he understand what his rights were; and (3) did he voluntarily waive them? See id.; United States v. Hall, 724 F.2d 1055, 1059 (2d Cir. 1983). Based upon the undisputed testimony at the evidentiary hearing, the answer to each question is "yes."
First, Agent Bornstein testified that he read Mr. McCoy his rights when he put Mr. McCoy into the car. The Court found Agent Bornstein to be a credible witness. He is an experienced law enforcement officer, who certainly knows that he should read an individual his Miranda rights if he intends to ask the individual questions. The only person who could have rebutted Agent Bornstein's testimony was Mr. McCoy, and he declined to testify. Accordingly, the Court finds that Mr. McCoy was advised of his Miranda rights before making the statements in question to the FBI agents, which are the subject of the Motion to Suppress.
Second, the Court finds that Mr. McCoy understood his rights. According to Agent Bornstein, Mr. McCoy said that he understood his rights after being read those rights, and Agent Bornstein believed that he did. No witness contradicted Agent Bornstein. Mr. McCoy was not a juvenile and did not appear to be under the influence of alcohol or drugs. He was also not a newcomer to the criminal justice system and thus was aware of his Miranda rights. See Hall, 724 F.2d at 1059 ("[T]here is force in the [trial] judge's observation that Hall knew his rights all along since he was not `a newcomer to the law' . . . and, more important, no newcomer to the jurisprudence of Miranda.") (citations omitted); Rivera, 2006 WL 1980312, at *6.
Finally, considering the totality of circumstances, the Court finds that Mr. McCoy voluntarily waived his constitutional rights before speaking to the agents. As related in Rivera, each case rests on its own facts and depends upon the conduct of the police, the conditions under which a defendant was interrogated, the existence of language barriers, and a defendant's prior experience with law enforcement. Rivera, 2006 WL 198032, at *6. According to Agent Bornstein's undisputed testimony, Mr. McCoy affirmatively indicated that he wished to continue speaking with the officers and forego his rights. A written waiver is not needed; nor is even an express waiver required. Id. at *7.
The circumstances of the arrest and Mr. McCoy's statements also confirm the voluntariness of his statements. The arrest was cordial and uneventful; no one threatened Mr. McCoy. To the contrary, it appears that Mr. McCoy was trying to appear cooperative — he told the agents where he lived; he voluntarily came down the stairs from his apartment to be arrested; his statements appeared to minimize his role in the drug conspiracy; and he made the statements at a time when he knew he was being taken to the federal courthouse, where he (a veteran of the law enforcement process) could expect to receive a lawyer. In these circumstances, the Court has little difficulty in concluding that Mr. McCoy's statements were the product of a deliberate choice rather coercion or intimidation, and that as a consequence, his statements to Agents Bornstein and Alderson are admissible against him.
B.
The Court has also had occasion recently to set forth the standards that govern Mr. McCoy's challenge to the search warrant application. See United States v. Nakouzi, No. 3:05cr154 (MRK), 2005 WL 3211208 (D. Conn. Nov. 30, 2005). As the Supreme Court held in Franks v. Delaware, 438 U.S. 154 (1978), if a defendant establishes that officers knowingly and intentionally made a false statement in an affidavit or acted with reckless disregard of the truth, and "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause," the search warrant must be voided and the fruits of the search excluded. Id. at 155-56. Here, Mr. McCoy has satisfied neither of the requirements of Franks.
First, there is no evidence that either Detectives Salkeld or Farrell knowingly, intentionally, or even recklessly made any false statement in their warrant application. Mr. McCoy's theory is that the Detectives knew or should have known of the confidential informant's federal arrest on December 13, 2005. Yet, the Detectives testified — credibly, in the Court's view — that they were unaware of the informant's federal arrest until after the search on December 20, 2005. They also testified that, in their experience, the informant had provided credible and reliable information and that they were unaware of any indication that the informant had provided false information. Detective Salkeld also testified that registered informants are warned that if they provide false information, they will be prosecuted. As a result, Mr. McCoy has failed to satisfy the threshold requirement under Franks.
Even had he satisfied the first element, however, Mr. McCoy's claim would founder on the second Franks requirement. For the Court is convinced that, even if the Detectives had included in the application the fact that the informant had been arrested on federal weapons charges, that fact would not have deprived the warrant of probable cause. As the Court explained in Nakouzi, the probable cause inquiry requires only a "` practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . ., including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Nakouzi, 2005 WL 3211208, at *7 (quoting United States v. Martin, 426 F.3d 68, 74 (2d Cir. 2005) (emphasis in original)). "Probable cause is not a rigid formula, but rather a `fluid concept-turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.'" Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
Here, the application described the Detectives' surveillance of 40 Elmer Street and a pattern of visitors that was consistent with narcotics activity. Also, the application described two controlled purchases, in which the officers searched the informant before and after the controlled purchase. While it is true that the informant did not wear a wire and therefore, the Detectives did not know for certain what transpired in the apartment, the fact that the informant had been arrested on a federal weapons charges would not seriously undermine the informant's credibility in that regard. After all, the affidavit itself described the informant as someone who was knowledgeable about street-level narcotics traffic, a business that has an historically close relationship with firearms. See United States v. Thomas, 363 F.Supp.2d 84, 92 (D. Conn. 2005) ("[I]t is well recognized that firearms are `regularly found on narcotics traffickers.'") (quoting United States v. Reyes, 353 F.3d 148, 154 (2d Cir. 2003)); United States v. Salazar, 945 F.2d 47, 51 (2d Cir. 1991) (noting that "narcotics dealers frequently carry weapons"). In sum, even considering the information regarding the arrest of the informant, "there remains a residue of independent and lawful information [in the warrant application] sufficient to support probable cause." United States v. Awadallah, 349 F.3d 42, 69 (2d Cir. 2003) (internal quotation marks omitted); see Nakouzi, 2005 WL 3211208, at *9.
Because Mr. McCoy has failed to satisfy either of the requirements established in Franks for invalidation of a warrant application or affidavit, there is no basis to suppress the physical evidence seized in executing the warrant on December 20, 2005.
C.
Finally, Mr. McCoy argues that the Court should suppress the statements he made during the course of the search of his apartment on December 20, 2005. It is undisputed that, at the time Mr. McCoy made the statements at issue, he had not been advised of his Miranda rights. Normally, statements made during custodial interrogation are inadmissible unless a suspect has first been apprised of his Miranda rights. Custodial interrogation is not limited to the asking of questions, but also includes its "functional equivalent," that is, "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). However, "the mere fact that a police officer may be aware that there is a possibility' that a suspect may make an incriminating statement is insufficient to establish the functional equivalent of interrogation." United States v. Taylor, 985 F.2d 3, 8 (2d Cir. 1993). Instead, the functional equivalent of interrogation requires statements or conduct on the part of the arresting officers that "would be perceived as interrogation by a reasonable person in the same circumstances." Id. at 7. Consistent with these principles, a suspect's spontaneous or voluntary statements unprovoked by police interrogation (or its functional equivalent) are not inadmissible, even when unaccompanied by Miranda warnings. See, e.g., United States v. Gelzer, 50 F.3d 1133, 1138 (2d Cir. 1995); United States v. Rogers, 41 F.3d 25, 31 (1st Cir. 1994); Taylor, 985 F.2d at 7; United States v. Compton, 428 F.2d 18, 22 (2d Cir. 1970); United States v. Ramos, 71 F. Supp. 2d 40, 47 (D. Conn. 1999).
Here, the undisputed testimony of the Detectives establishes that Mr. McCoy's statements while police were searching his apartment were spontaneous and voluntary comments, and this Court deems them admissible. The police never questioned Mr. McCoy before he made the comments at issue. The police merely conducted a search within the range of vision of Mr. McCoy and the others. Conducting a search, without more, does not constitute interrogation. See, e.g., United States v. Wright, 991 F.2d 1182, 1186-87 (4th Cir. 1993) ("spontaneous statements which were not the product of interrogation [are] not barred by the Fifth Amendment"); United States v. Castello, 830 F.2d 99, 102 (7th Cir. 1987) (" Miranda applies only to custodial interrogation, and [the defendant] was not subjected to questioning or its functional equivalent (any words or actions, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect)."). For "interrogation must reflect a measure of compulsion beyond that inherent in the custody itself." United States v. Gay, 774 F.2d 368, 379 n. 20 (10th Cir. 1985); see Rhode Island v. Innis, 446 U.S. at 300; United States v. Rodriguez, 356 F.3d 254, 258 (2d Cir. 2004) ("`Only questioning that reflects a measure of compulsion above and beyond that inherent in custody itself constitutes interrogation the fruits of which may be received in evidence only after Miranda warnings have been given.'") (quoting United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987)). Mr. McCoy's first statements were in direct response to his wife's admonishments, not to any police interrogation. And his comments following discovery of the handgun appear to have been designed to exonerate himself. Both sets of statements were voluntary and unprovoked by police questioning or conduct. As a consequence, they are all admissible. See, e.g., Gelzer, 50 F.3d at 1138 (stating that defendant's statement "was volunteered, was not the product of interrogation, and was therefore admissible"); Wright, 991 F.2d at 1186-87 ("The statements were completely voluntary; Wright uttered them as he watched his bedroom being searched.").
III.
Accordingly, Defendant's Motion to Suppress [doc. # 354] in 3:04cr336 (MRK) is DENIED, and Defendants's Motion to Suppress [doc. # 22] in 3:06cr100 (MRK) is DENIED.
IT IS SO ORDERED.