Opinion
Criminal No.: 07-982 (JLL).
October 16, 2008
ORDER
Presently before the Court is Defendant's motion to suppress the evidence. For the reasons set forth in this Court's Letter Opinion dated October 16, 2008,
IT IS on this 16th day of October, 2008, ORDERED that Defendant's motion to suppress the evidence [CM/ECF Docket Entry No. 50] is DENIED.
IT IS SO ORDERED.
October 16, 2008
LETTER OPINION
VIA ELECTRONIC FILING
Frank P. Arleo, Esq.
Arleo Donohue, LLC
Penn Federal Building
622 Eagle Rock Ave.
West Orange, NJ 07052
Lee David Vartan, Esq.
Office of the United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Dear Counsel:
Defendant Shamar Rankins has been charged with bank fraud in violation of 18 U.S.C. § 1344 and § 2. On May 7, 2008, Defendant submitted several pretrial motions, including a motion to suppress evidence gathered by the United States Secret Service ("Secret Service") on February 3, 2006. By order dated July 24, 2008, this Court disposed of all of the pretrial motion items except the motion to suppress, granting a hearing on that issue. (CM/ECF Docket No. 54) On August 11, 2008 this Court held a suppression hearing; Agent Jose Riera and Ms. Sheila Murray testified. A follow up hearing was held on September 22, 2008; Agent Carl Agnelli testified. This Court has considered the evidence presented at the suppression hearings and the submissions made in support of and in opposition to Defendant's motion. For the reasons set forth below, this Court denies Defendant's motion to suppress the evidence.
BACKGROUND
On February 3, 2006, Defendant's mother's home was under surveillance by the Secret Service. A cooperating witness, Anthony Burton, acting undercover, had arranged a meeting between himself and Defendant at this location. Tr. (Aug. 11, 2008) at 11:2-25. Mr. Burton was to pay Defendant in exchange for "check stock, checks, manufactured checks and things like that." Id. at 12:1-4. Once the transaction was complete, Mr. Burton gave the agents a visual signal and the agents exited their vehicles, identified themselves, and attempted to arrest Defendant. Id. at 12:25, 13:1-5; Tr. (Sept. 22, 2008) at 136:23-25, 137: 1-7. Defendant fled through the house and out the back door; agents pursued Defendant, going around the house. Tr. (Aug. 11, 2008) at 13:1-5; Tr. (Sept. 22, 2008) at 135:8-16. Another man, Mr. Remy, fled out the back door with Defendant. Tr. (Sept. 22, 2008) at 119:2-4. The agents chased and arrested Mr. Remy but were unable to apprehend Defendant that day. Tr. (Aug. 11, 2008) at 13:8-13; Tr. (Sept. 22, 2008) at 119:5-11. In the backyard, the agents retrieved a day planner type calendar that contained check stock and other contraband consistent with bank fraud. Tr. (Aug. 11, 2008) at 13:16-20.
The agents then questioned the remaining people in the house, including Terrell Murray, Defendant's brother. Id. at 14:5-25, 15:4, 17:6-10. Mr. Murray initially was placed in handcuffs until the officers could verify his identity. Id. at 15:17-25, 16:1-4. During questioning, Mr. Murray indicated that the house was owned by Sheila Murray, his and Defendant's mother. Id. at 18:16-20; Tr. (Sept. 22, 2008) at 121:11-20. Mr. Murray called his mother, who came to the house. Tr. (Aug. 11, 2008) at 18:16-24; Tr. (Sept. 22, 2008) at 121:15-25, 122:1. The agents asked Ms. Murray for permission to search Defendant's unlocked room; she signed the consent form, and the agents searched the room, recovering additional evidence of bank fraud. Tr. (Aug. 11, 2008) at 21:9-12, 29:10-20; Tr. (Sept. 22, 2008) at 126:11-23, 128:8-13.
Defendant seeks to exclude both the day planner retrieved in the backyard and the evidence found in his room.
LEGAL ANALYSIS
A. The Day Planner
The Secret Service asserts that the day planner was abandoned by Defendant as he was fleeing the scene. Defendant seeks to suppress this evidence but does not clearly assert the basis for his objection. Based on the questioning at the two suppression hearings, which seemed to focus on whether the testifying agents actually saw Defendant discard the day planner, this Court assumes that Defendant's argument is either that the day planner was not abandoned or that it was not Defendant's property. See Tr. (Sept. 22, 2008) at 138:21-25, 139: 1-4. Agent Riera testified that the day planner found in the backyard was the same as the one Defendant was observed holding during the transaction with Mr. Burton in the front of the house. Tr. (Aug. 11, 2008) at 45:9-25, 46:1-4. This Court finds this testimony credible and so will assume that the day planner was Defendant's. The question, then, is whether the day planner was abandoned by Defendant or was otherwise legitimately seized by the officers.
The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. U.S. Const. Amend. IV. The first issue for a court to consider when confronted with a motion to suppress under the Fourth Amendment is whether the defendant had a "legitimate expectation of privacy" in the premises searched or the property seized. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). If property has been abandoned, a defendant no longer has an expectation of privacy in it. See Abel v. United States, 362 U.S. 217, 241 (1960). A finding of abandonment "must be established by clear and unequivocal evidence." United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004). But, "[a]bandonment for purposes of the Fourth Amendment differs from abandonment in property law; here the analysis examines the individual's reasonable expectation of privacy, not his property interest in the item." Id. The Third Circuit Court of Appeals has found this standard met where a defendant voluntary discarded property by throwing something away when fleeing from the police, stating that such an action "must be deemed an abandonment of his interest therein." United States v. Martin, 386 F.2d 213, 215 (3d Cir. 1967).
Here, Agent Riera testified that Defendant discarded the day planner as he was fleeing from the Secret Service. Tr. (Aug. 11, 2008) at 13:16-20, 47:1-3. During cross examination, defense counsel asked Agent Riera: "[H]ow do you know that what was dropped in the back of the house was the same thing [Defendant] had in his hands in the front of the house?" Id. at 45:21-23. Agent Riera responded that he knew because the day planner in the back of the house was the same as the one that he had personally observed the Defendant holding during the transaction with Mr. Burton. Id. at 45:9-25, 46:1-4. He also stated, after further questioning, that he saw Defendant discard the day planner. Id. at 47:1-2. However, during cross examination of Agent Agnelli, defense counsel attempts to raise doubt about whether any agent actually saw Defendant throw the day planner away. Tr. (Sept. 22, 2008) at 138:21-25, 139: 1-4. This Court finds that there is some inconsistency in the testimony as to whether an agent actually saw Defendant "discard" the day planner. However, this Court finds credible and sufficient Agent Riera's testimony that Defendant fled from the police out the back door, that a day planner was on the ground in the back of the house, and that it was the same day planner that Defendant had been observed holding only moments before during the transaction with Mr. Burton. Therefore, this Court finds that the testimony supports a finding that the day planner had been discarded by Defendant as he fled from the agents, and as such, was abandoned property properly seized by the agents.
Additionally, even if the day planner had not been "discarded" by Defendant, suppression would not be required because it was found in plain view of the agents. Individuals have a reasonable expectation of privacy not only in their home, but also in the area surrounding their home, the curtilage. See United States v. Dunn, 480 U.S. 294, 300-01 (1987). But, "[w]here [an] initial intrusion [into an otherwise protected area] that brings the police within plain view of . . . 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 v. California, 496 U.S. 128, 135 (1990). For evidence in plain view to be validly seized three requirements must be met: (1) "the officer must not have violated the Fourth Amendment in `arriving at the place from which the evidence could be plainly viewed;'" (2) "the incriminating character of the evidence must be `immediately apparent;'" and (3) "the officer must have had `a lawful right of access to the object itself.'" United States v. Menon, 24 F.3d 550, 559 (3d Cir. 1994) (quoting Horton, 496 U.S. at 136) (emphasis in original). For example, a warrantless seizure may be permissible where "the police . . . inadvertently come across evidence while in hot pursuit of a fleeing suspect." Horton, 496 U.S. at 135 (internal quotations omitted).
Here, the agents were legitimately in the backyard in hot pursuit of Defendant, attempting to arrest him after witnessing the transaction between Defendant and Mr. Burton, the day planner was laying in the backyard (the agents did not need to move the day planner or enter into another area to have access to it), and Agent Riera's knowledge that the day planner was the same as the one Defendant had been holding during his transaction with Mr. Burton made its incriminating character apparent. It is not necessary that the agent knew or had an "unduly high degree of certainty as to the incriminating character of the evidence under the plain view doctrine." United States v. Pindell, 336 F.3d 1049, 1055 (D.C. Cir. 2003) (quoting United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002)). All that is required is that the agents had "probable cause to suspect that the item is connected with criminal activity." Illinois v. Andreas, 463 U.S. 765, 771 (1983); see also Pindell, 336 F.3d at 1055-56 (holding that a notebook was properly seized where an officer had information that the defendant had recorded information related to a crime in a notebook and finding that "[a]t a minimum, [the officer] had probable cause to believe that the notebook could have evidentiary value"); United States v. Barnard, No. 06-73, 2008 U.S. Dist. LEXIS 8665, at *15 (D. Del. Feb. 6, 2008) (finding that envelopes were properly seized where an alias was written on the outside of the envelopes, making their "evidentiary significance" apparent to the officer). Agent Riera's personal knowledge that Defendant was holding the day planner during his transaction with Mr. Burton provided probable cause that the day planner could have evidentiary value. Therefore, even if the planner had not been "abandoned," its seizure by the agents was appropriate.
B. Evidence From the Search of Defendant's Room
Ms. Murray, Defendant's mother and the owner of the house, signed a consent form after a discussion with Agent Riera that authorized the Secret Service to search Defendant's unlocked room. Defendant argues that the consent was not voluntary, making the warrantless search of his room improper. If a consent to search is voluntary, a warrantless search is permissible under the Fourth Amendment and evidence seized will be admissible. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The Supreme Court has held that in determining whether a consent to search is voluntary a court must look at the totality of the circumstances, including such things as the age, education, and intelligence of the person in question, the "repeated and prolonged nature of the questioning," and the "use of physical punishment." Id. at 226.
The defense argues that Ms. Murray's consent was not voluntary, that she only signed the consent form under duress. The defense makes two duress arguments: that Ms. Murray needed medical attention and was told she could not leave until she signed the form, and that Ms. Murray was told that until she signed the form her son, Terrell Murray, would remain in handcuffs. Ms. Murray testified that her son Terrell Murray was in handcuffs when she arrived home. Tr. (Aug. 11, 2008) at 71:1-7, 74:8-12. However, her testimony on this point is inconsistent, vacillating between "he was in handcuffs" to "not sure" if he was in handcuffs when she arrived. Id. at 93:6-9, 74:3-7. Agent Riera testified that the handcuffs were not on when Ms. Murray came home. Id. at 31:21-23; see also Tr. (Sept. 22, 2008) at 120:3-15 (Agent Agnelli testifying that he did not recall Mr. Murray being in handcuffs before Ms. Murray was called to come home). Given that Ms. Murray's testimony is not clear on this point and is contradicted by the agents' testimony, this Court finds that any alleged coercion related to Terrell Murray's handcuffs has not been established. The Court will, therefore, focus on Ms. Murray's claim that the consent was not voluntary because she was in need of medical treatment and only signed the form so that she could go to the doctor.
Both Agent Riera and Ms. Murray testified that no physical threats were made by Agent Riera nor was any physical force used. Tr. (Aug. 11, 2008) at 26:14-25, 27:1-3, 90:19-25, 91:1-25, 92:1-5. Additionally, both testified that the discussion between Agent Riera and Ms. Murray regarding consent to search lasted no more than thirty minutes; Agent Riera testified that the conversation was approximately fifteen minutes, id. at 21:13-17, and Ms. Murray testified that it was less than thirty minutes from the time she arrived home until the time she says she called her doctor and then left, id. at 82:3-25. The area of conflicting testimony relates to whether Ms. Murray told Agent Riera she was experiencing chest pains and needed a doctor, whether she called her doctor from her house because of the pains, and whether Agent Riera told Ms. Murray that she could not leave until she signed the consent form.
Agent Riera testified that Ms. Murray did not tell him that she was experiencing chest pains and needed a doctor. Id. at 31:24-25, 32:1-3. Agent Agnelli also testified that Ms. Murray "appeared fine" and had "no overt signs of any issues," that she did not appear ill. Tr. (Sept. 22, 2008) at 124:1-22. Agent Riera testified that he did not tell Ms. Murray that she could not leave unless and until she signed the consent form. Tr. (Aug. 11, 2008) at 32:14-18. Agents Riera and Agnelli both testified that Agent Riera is an emergency medical technician ("EMT"), who would have been ready and able to give Ms. Murray medical assistance if needed. Id. at 32:4-13; Tr. (Sept. 22, 2008) at 130:2-14. Both agents also testified that they did not see her make any phone calls. Tr. (Aug. 11, 2008) at 103:1-11; Tr. (Sept. 22, 2008) at 124:23-25, 125:1-12. On the other hand, Ms. Murray testified that she did tell the agent she spoke with of her chest pains, and that she was told that she could not leave until she signed the consent form. Tr. (Aug. 11, 2008) at 73:7-14, 75:13-21. She testified that she called her doctor, Dr. Patel, from her cell phone while at the house and that she went to the doctor's office after she left. Id. at 73:15-17, 84:22-25, 85:1-9. She testified that she would not have signed the consent form if she did not need to leave to get medical treatment. Id. at 75:22-25, 76:1-2. The government, at the September suppression hearing, submitted to this Court telephone records for Ms. Murray's cell phone for the day in question; the records do not show any call to Dr. Patel. Defense counsel requested additional time to investigate whether the call could have been made from another phone. Despite Ms. Murray's prior testimony that the call was made from her cell phone, this Court granted defense counsel additional time to supply any corroborating records. On September 29, 2008, defense counsel informed this Court that they could not locate any telephone records to support Ms. Murray's assertion. The defense did submit handwritten notes from Dr. Patel on the date in question. The notes include the following remarks: "patient states that she is upset because police were in her house," and "no chest pains or sob" (shortness of breadth). Def. Ltr. Aug. 28, 2008; Tr. (Sept. 22, 2008) at 112:3-12. Finally, although Ms. Murray's testimony indicates that other family members were in the house at the time of the conversation in question and that her sister drove her from her house to Dr. Patel's office, Tr. (Aug. 11, 2008) at 77:18-21, no other testimony, besides Ms. Murray's, was offered by the defense.
Overall, this Court found all the witnesses who testified at the two suppression hearings, Agents Riera and Agnelli and Ms. Murray, credible, but finds that the totality of the circumstances supports a finding that Ms. Murray's consent was voluntary. As an initial point, Ms. Murray did sign the consent form. The conversation between Ms. Murray and Agent Riera took place in Ms. Murray's home, there were no physical threats, and the duration of the questioning was very short. Ms. Murray's testimony regarding her call to her doctor was not supported by the evidence; the evidence submitted supports both agents' testimony that they did not see Ms. Murray make any calls. Additionally, although Dr. Patel's notes indicate that Ms. Murray told him she was anxious because the police were at her house, it also states that she was not experiencing chest pains or shortness of breath, and provides no information bearing on the communication between Ms. Murray and Agent Riera. On the other hand, the two Secret Service agents, both of whom have been recognized for their service and records by selection to the Presidential Protection detail, provided consistent testimony. Agent Riera also testified that Ms. Murray did not communicate any medical needs to him. He is an EMT, specially trained to handle medical needs that may arise during operations, and his testimony was credible that had he been told of a medical condition he would have assisted Ms. Murray. Therefore, in balancing the testimony, this Court finds the agents' testimony more credible, and, therefore, denies suppression of the evidence found in the search of Defendant's room.
CONCLUSION
Based on the reasons set forth above, Defendant's motion to suppress the day planner and the evidence found in his room is DENIED.
An appropriate Order accompanies this Letter Opinion.