Opinion
05 CR 1114 (SAS).
May 3, 2006
For Defendant Chao Xian Yao: Glenn A. Garber, Esq., New York, New York.
For Defendant Jun Liang: Scott B. Tulman, Esq., New York, New York.
For the Government: W.S. Wilson Leung Assistant United States Attorney, New York, New York.
OPINION AND ORDER
I. INTRODUCTION
Defendants Chao Xian Yao and Jun Liang move to suppress any statements made to law enforcement authorities on July 28, 2005, arguing that such statements were the fruits of an unlawful arrest. Defendants also claim that they did not voluntarily and knowingly waive their Miranda rights. Defendants also seek to suppress any physical evidence obtained from them incident to their alleged unlawful arrests and, in Yao's case, evidence seized from his apartment including, but not limited to, a computer and two cellular telephones. Yao claims that he did not voluntarily give consent to search his apartment. A suppression hearing was held on February 10, 2006, following which the parties made post-hearing submissions.
The Government called four witnesses: Special Agents William H. McMurry and Robert Julian of the Federal Bureau of Investigation ("FBI"), Detective Kevin Mannion of the New York City Police Department ("NYPD"), and Paolo Koo, a Chinese interpreter employed by the FBI. Defendants did not call any witnesses, nor did they testify. The testimony from the Government's witnesses has been summarized in Yao's Post-Hearing Memorandum of Fact and Law ("Def. Mem.") and the Government's March 20, 2006 letter and need not be recited here. Only those facts relevant to the holdings herein will be recounted.
II. LEGAL STANDARDS
A. Probable Cause to Arrest
"Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been committed by the person to be arrested." This knowledge or information need not be personally held by the individual arresting officer; rather, the decision to arrest can be based on the "collective knowledge" of all law enforcement officers involved in an operation who were in communication with each other.
United States v. Gagnon, 373 F.3d 230, 234 (2d Cir. 2004).
See United States v. Garcia, 413 F.3d 201, 213 (2d Cir. 2005). See also United States v. Cruz, 834 F.2d 47, 51 (2d Cir. 1987) (noting that "determination of whether probable cause to arrest exists can be based on the collective knowledge of all of the officers involved in the surveillance efforts" so long as "the various law enforcement officers in this investigation were in communication with each other").
Probable cause is a "fluid concept" that does not require "absolute certainty." It requires only a "probability" or a "substantial chance" that a crime has taken or is taking place. "The fact that an innocent explanation may be consistent with the facts as alleged . . . does not negate probable cause." "An arresting officer `is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.'" B. Waiver of Miranda Rights
Illinois v. Gates, 462 U.S. 213, 232 (1983).
Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003).
Gates, 462 U.S. at 244 n. 13. Cf. United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004) ("The standard does not demand certainty but only a `fair probability' that contraband or evidence of a crime will be found.").
Gagnon, 373 F.3d at 236 (ellipsis in original, quotations and citation omitted).
United States v. Rodriguez, No. 03 CR 1122, 2004 WL 2049235, at *2 (S.D.N.Y. Sept. 13, 2004) (quoting Ricciuti v. NYC Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)).
To prove a valid waiver of Miranda rights, the Government must show that the waiver represented an uncoerced choice and that defendants understood the nature of the rights being waived as well as the consequences of the waiver. The Government must establish the sufficiency of a Miranda waiver by a preponderance of the evidence.
See Moran v. Burbine, 475 U.S. 412, 421 (1986) ("Only if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.") (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). See also United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir. 1997) ("To prove a valid waiver, the government must show (1) that the relinquishment of the defendant's rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right.") (quotations and citation omitted).
See Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002).
A waiver is only valid where it is voluntary, knowing, and intelligent. In other words, the waiver must be "the product of a free and deliberate choice rather than intimidation, coercion, or deception." In addition, "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Indeed, "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . do not presume acquiescence in the loss of fundamental rights."
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Moran, 475 U.S. at 421.
Id.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (quotations and citation omitted).
Courts are not limited to a fixed list of factors they may consider in determining whether a waiver is voluntary, knowing and intelligent. Relevant factors include a defendant's age, experience, education, background and intelligence. Moreover, a defendant's prior contact with law enforcement is relevant to his ability to understand his Miranda rights and the consequences of waiving those rights. Similarly, a defendant's ability to speak English is a relevant factor, as is his lack of familiarity with the American criminal justice system. Finally, "the fact that a person is in custody or has been subjected to a display of force does not automatically preclude a finding of voluntariness."
See United States v. Labrada-Bustamante, 428 F.3d 1252, 1259 (9th Cir. 2005).
See United States v. Scarpa, 897 F.2d 63, 69 (2d Cir. 1990).
See Valdez v. Ward, 219 F.3d 1222, 1231 (10th Cir. 2000).
Labrada-Bustamante, 428 F.3d at 1259.
United States v. Snype, 441 F.3d 119, 131 (2d Cir. 2006) (holding that apartment owner's consent to search was voluntary despite the fact that "a heavily armed SWAT team . . . initially secured her and her boyfriend in handcuffs and raised the possibility of taking the couple into custody while placing [the owner's] young daughter in protective care"). See also United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir. 2004) (holding that the use of guns to effectuate arrest and handcuffing of defendant did not render his consent to search his home involuntary).
Even if an arrest is unlawful, statements given after a knowing and intelligent waiver will not be suppressed. In Brown v. Illinois, the Supreme Court addressed the issue of whether statements made after an unlawful arrest, but after Miranda warnings were given in full, should have been suppressed. The Court stated that "[i]n order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be `sufficiently an act of free will to purge the primary taint.'" The Court further stated that while Miranda warnings are an important factor in determining whether statements were obtained by exploitation of an illegal arrest, it is not the only factor to be considered. According to the Supreme Court, "[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct are all relevant."
422 U.S. 590, 591 (1975).
Id. at 602 (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)).
See id. at 603.
Id. at 603-04 (citations omitted).
C. Consent to Search
"It is well settled that a warrantless search does not violate the Fourth Amendment if `the authorities have obtained the voluntary consent of a person authorized to grant such consent.'" "`[S]o long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search.'" The Government must show that consent was voluntary by a preponderance of the evidence.
United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996) (quoting United States v. Elliot, 50 F.3d 180, 185 (2d Cir. 1995)).
Id. (quoting United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995)).
See United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983).
Whether an individual has voluntarily consented to a search by law enforcement agents is a fact-based inquiry that must be determined based on the "totality of all the circumstances." "Factors that courts consider in assessing the voluntariness of a consent include the individual's age, intelligence and educational background, the length and nature of the questioning and whether the law enforcement officials engaged in coercive behavior." The concept of a "knowing and intelligent waiver, which is strictly applied to rights involving a fair criminal trial, does not govern in the Fourth Amendment context." Accordingly, "knowledge of the right to refuse consent is not a requirement to a finding of voluntariness, although it may be a factor in ascertaining whether the consent was coerced."
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
United States v. Jones, 154 F. Supp. 2d 617, 621 (S.D.N.Y. 2001).
Garcia, 56 F.3d at 422.
Id. at 422-23 (citing Schneckloth, 412 U.S. at 248-49).
The factual inquiry concerning the voluntariness of consent is guided by an "objective standard." In other words, the ultimate question is whether "the officer had a reasonable basis for believing that there had been consent to the search." This reasonableness standard is predicated on the principle that the Fourth Amendment prohibits only "unreasonable" searches and seizures. Consequently, "`[t]he Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to [conduct the search that was undertaken].'"
Garcia, 56 F.3d at 423 (quotations and citation omitted). See also Florida v. Jimeno, 500 U.S. 248, 251 (1991) ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?").
Garcia, 56 F.3d at 423 (quoting Jimeno, 500 U.S. at 249) (alteration in original).
Finally, even if there has been an illegal entry, subsequent events may establish that a later search was not tainted by the initial illegal entry.
When a consent to search follows an illegal entry, this circuit requires the government to show more than the voluntariness of the consent; it must also demonstrate that "the taint of the initial entry has been dissipated" in order to admit evidence seized following the illegal entry . . . the question of whether a person's statement has been purged of the taint of prior official illegality does not hinge on a simple "but for" analysis, but rather must be answered on the facts of each case . . . as Oguns recognized, intervening events, even within a brief time, can sometimes sever the causal connection between an illegal entry and a subsequent consent to search, thereby permitting a court to conclude that the consent fairly reflects an act of free will.
Snype, 2006 WL 695651, at *7-9 (quoting United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990)).
III. DISCUSSION
A. Probable Cause to Arrest
There was sufficient probable cause for the arrests of Yao and Liang. At the time of the arrests, the FBI agents on the scene were aware of the following:
1. a witness reported that his female cousin from China had been recently smuggled into the United States;
2. the cousin was being held hostage by Chinese male alien smugglers pending the payment of a smuggling fee;
3. the cousin was being held hostage along with others in the New York City area;
4. the witness was concerned about the safety of his cousin;
5. the smugglers made ransom demands to the witness using a Cingular cellular phone and a Verizon cellular phone;
6. the Cingular cellular phone was subscribed to a basement apartment located in Brooklyn;
7. during the late afternoon of July 28, 2005, defendants left the apartment (to which the Cingular cellular phone was subscribed) with an Asian female;
8. the defendants and the Asian female were met by another Asian female in the vicinity of the corner of Eighth Avenue and 48th Street in Brooklyn;
9. the second Asian female briefly spoke with both Yao and Liang on the corner, and then the four walked toward Seventh Avenue and 48th Street;
10. both Asian females and Yao entered the vestibule of a building while Liang waited outside on the street;
11. after meeting briefly in the vestibule, Yao and the Asian females exited the vestibule and, along with Liang, walked back toward Eighth Avenue and 48th Street. The Asian females split off from the defendants and walked north while defendants went south; and
12. shortly thereafter, an agent placed a call to the Cingular cellular phone, and Yao was observed picking up a cellular telephone and answering it.
See Transcript of February 10, 2006 Hearing ("Tr.") at 5, 44, 61, 63, 89, 90, 158.
See id. at 5, 44, 61, 63, 89, 90, 158.
See id. at 5, 44-45, 159.
See id. at 77, 90, 112, 158.
See id. at 5-6, 45, 64-65.
See id. at 6-7, 45, 65-66.
See id. at 8, 92-93.
See id. at 8-9, 46-48.
See id. at 48.
See id. at 49.
See id. at 49.
See id. at 10, 67.
Given the totality of these circumstances, there was certainly a probability or substantial chance that what the agents witnessed was Yao and Liang acting in concert in furtherance of the hostage-taking crime under investigation. A person of reasonable caution could interpret these events as proof that Yao and Liang had just released a smuggled alien to her relative.
Defendants contend that because the FBI agents did not know that the woman released was the witness's cousin, there was no probable cause for their arrest. The woman whom the agents observed being released was not, in fact, the witness's cousin. As agents later discovered, the witness's cousin was still being detained in Yao's apartment. This fact, however, does not undermine the finding of probable cause. The witness advised the FBI that his cousin was part of a larger shipment of aliens, and that she was being detained along with other hostages. In light of this information, defendants' conduct could reasonably be interpreted as the release of a hostage, albeit not the particular hostage who was the subject of the FBI's original investigation. Given the totality of the circumstances, the agents' conclusion that Yao and Liang were acting in furtherance of a crime was reasonable. Because I find that the arrests were lawful, any subsequent statements and physical evidence cannot be suppressed under the fruit of the poisonous tree doctrine.
B. Waiver of Miranda Rights
Shortly after their arrest, Yao and Liang were taken into custody, transported to a nearby police department parking lot ten blocks away, and questioned. Koo testified that prior to any questioning of either defendant in the parking lot, he asked them whether they spoke Mandarin, and both responded that they did. Then, under directions from Agent Hui, Koo separately advised each of the defendants in Mandarin of their rights to remain silent, to refuse to answer any questions, to have the advice of counsel, and to have counsel appointed if they could not afford counsel. Koo also warned each defendant that anything they said could be used against them. According to Koo, each of the defendants responded in Mandarin that he understood his rights and agreed to waive them. Defendants and Koo had no problems communicating with each other in Mandarin. Koo also testified that at no time did anyone threaten either of the defendants to force them to waive their Miranda rights. Under these circumstances, defendants' waivers of their Miranda rights were voluntary, knowing and intelligent.
See Tr. at 93-94, 98.
See id. at 93-94, 98-99, 159-60.
See id. at 94, 99.
See id. at 94-95, 99.
See id. at 97, 98, 99-100. The fact that Yao speaks Mandarin is evident from the Affirmation submitted with his notice of motion. See Affirmation of Chao Xian Yao, Interpreter's Sworn Statement ("I translated the above affirmation to Chao Xian Yao from Mandarin to English prior to Mr. Yao signing the affirmation, and Mr. Yao indicated that he understood the affirmation prior to signing it.").
See Tr. at 98, 100.
With Koo's assistance, Special Agent John Hui, the team leader, asked if Yao had a cellular telephone, where Yao lived, and what he was doing with the female with whom he was observed. In response, Yao confirmed that he owned the cellular telephone found on him, provided his address, and stated that he had just released the female who was with him to her family member. Yao explained that the female had been detained prior to being released and that there were two more hostages locked in his apartment. After waiving his Miranda rights, Liang was then questioned. Agent Hui, through Koo, asked Liang where he lived and what he was doing with Yao. Liang responded that he was accompanying Yao and that they had just released a female to her relative. Liang also stated that he was staying with Yao, although he did not provide an address.
See Tr. at 95.
See id. at 96.
See id.
See id. at 99.
See id.
See id.
Approximately one hour later, defendants were transported to 26 Federal Plaza for processing. There, Agent Hui again read each defendant his rights through an interpreter. Agent Hui also used a form written in Chinese advising defendants of their Miranda rights. The written form gave the following advice:
See id. at 73, 100, 104-05.
See id. at 73-74, 100, 101-02.
[B]efore we start questioning, you should know your rights. You have the right to remain silent, anything you say can be used against you as evidence in court. Before we start questioning, you have the right to an attorney. During the questioning, you have the right to have your attorney present. If you cannot afford an attorney, and if you are willing, the court will appoint one to represent you. If you agree to answer all the questions without an attorney present, you have the right to stop the questioning at any time.
Advice of Rights/Waiver of Rights Form, Government Exhibits ("GX") 2 and 3.
The bottom of the form states: I have read the above rights, I understand all my rights, and I agree to answer questions without my attorney present. Both defendants told Koo they could read Chinese and each confirmed that they could read the form. Both defendants then read and signed the form. During the questioning at 26 Federal Plaza, defendants reiterated the statements they first made during the parking lot interviews and provided further details of their involvement in the alien smuggling scheme.
See id.; see also Tr. at 102.
See Tr. at 104-05, 150.
See GX 2 and 3; Tr. at 102, 107.
See Tr. at 151-52.
Even if the circumstances at the time of defendants' arrests could be viewed as coercive and/or intimidating, thereby invalidating their original Miranda waivers, the waivers given at 26 Federal Plaza were sufficiently attenuated from the original waivers to be voluntary, knowing and intelligent. The shock of the initial arrests had dissipated by the time defendants reached 26 Federal Plaza, one hour later. By this time, defendants knew they had been arrested for alien smuggling. More importantly, defendants had the benefit of a written form in the Chinese language advising them of their Miranda rights. Having read and signed this form, defendants cannot claim that they misunderstood the rights verbally described to them when they were first arrested.
See United States v. Hack, 782 F.2d 862, 866 (10th Cir. 1986) ("An express written or oral statement or waiver by a defendant of his right to remain silent . . . is `usually strong proof of validity of that waiver.'") (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)).
Furthermore, the agents' efforts in the parking lot to advise defendants of their Miranda rights cannot be characterized as intentionally coercive or improper. At the scene, the officers made every effort to ensure that defendants understood their Miranda rights and knowingly and voluntarily waived those rights. Any indicia of coercion were the by-products of the necessary showing of police authority, not the result of deliberately improper tactics on the part of the police.
Finally, defendants argue that the second waiver was meaningless because the "cat [was] out of the bag." But the Supreme Court has "never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver." Thus, the fact that defendants reiterated at 26 Federal Plaza some of what they said in the parking lot is of no legal relevance. Accordingly, even if the first Miranda waivers were involuntary, the statements made by defendants at 26 Federal Plaza were purged of any taint and are therefore admissible.
See Def. Mem. at 20 (stating that the second waiver "followed the first oral waiver and occurred after the cat was already out of the bag").
Oregon v. Elstad, 470 U.S. 298, 312 (1985).
See United States v. Edmondson, 791 F.2d 1512, 1515-16 (11th Cir. 1986) ("Edmondson's confession, which began approximately forty-five minutes after his arrest, away from the scene of the arrest, made after twice being advised of his Miranda rights, and initiated by him was sufficiently attenuated [from the illegal arrest].").
C. Consent to Search
Shortly after defendants' arrests, Agent Hui asked for Yao's consent to search his apartment, and Yao agreed. Yao provided the keys to Agent Hui and pointed out the key needed to unlock the door. Yao also admitted that he had two more hostages locked in his apartment. However, at the time this initial verbal consent was obtained, Yao was not informed that he could refuse consent. Later, at 26 Federal Plaza, Koo translated an FBI consent to search form written in English to Yao for his signature. This form authorized a complete search of the basement apartment located at 715 48th Street, Brooklyn, New York. It also stated that the signatory had been advised of the right to refuse consent and gave his permission voluntarily. The form was read to Yao, he agreed once again to a search of his apartment, and he signed the form. Finally, on August 16, 2005, Yao signed a consent to search form after consulting with his former attorney, John S. Yong. This consent form permitted law enforcement agents, including FBI agents, to physically and electronically search one Nextel cellular telephone, one Cingular cellular telephone, and one laptop computer, all of which had been seized from Yao's person or his apartment.
See Tr. at 97.
See id.
See id. at 96.
See March 31, 2006 Letter from Glenn A. Garber, Yao's attorney, to the Court, at 9.
See Consent to Search Form, GX 1; Tr. at 103.
See Tr. at 103-04.
See Exhibit A to 3/20/06 Letter From the Government to the Court.
See id.
The fact that Yao was under arrest at the time he first consented to a search of his apartment does not necessarily undermine the voluntariness of his consent. On the other hand, it is troubling that Yao was not informed that he could refuse consent before he gave his first verbal consent to the search of his apartment. Because of this, whether Yao's verbal consent given at the parking lot was truly voluntary is questionable. I shall therefore assume, arguendo, that this verbal consent was involuntary.
See United States v. Watson, 423 U.S. 411, 424 (1976) ("[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search."); United States v. Puglisi, 790 F.2d 240, 243 (2d Cir. 1986) (per curiam) ("[T]he fact that a defendant is in custody does not alone vitiate his consent to a search.").
See United States v. Haynes, 301 F.3d 669, 683-84 (6th Cir. 2002) (defendant's oral consent, given after an unquestionably illegal search, did not purge the taint of the first illegal search where defendant had not been informed that he could refuse consent to search).
Nonetheless, the written consent form signed by Yao at 26 Federal Plaza was an intervening event that removed the taint of the initial entry. At the time he signed that form, Yao was informed that he did not have to consent to any search. Moreover, the consent to search form signed by Yao and his former attorney over two weeks later, on August 16, 2005, further supports the conclusion that Yao voluntarily consented to a search of certain property found in his apartment. Given the scope of the written consent form signed on July 28, 2005, there is no basis on which to suppress any of the physical evidence seized. Nor is there any basis to suppress the items discovered during the searches incident to arrest, as I have already found that the arrests were lawful.
See Oguns, 921 F.2d at 447-48 (considering defendant's awareness of the right to refuse consent as a relevant factor to the exercise of free will); United States v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994) (finding a signed consent form persuasive in determining whether consent is voluntary).
Because I find that intervening events have dissipated any taint resulting from Yao's verbal consent, I need not address the Government's exigent circumstances argument. See 4/10/06 Letter from Assistant U.S. Attorney W.S. Wilson Leung to the Court at 3.
III. CONCLUSION
Defendants' motions to suppress are denied. The Clerk of the Court is directed to close these motions (Documents # 12 and 19). A status conference has been scheduled for May 8, 2006, at 3:00 p.m.
SO ORDERED: