Opinion
Case No. 03 CR 22
October 21, 2003
ORDER
Defendants are each charged with one count of conspiracy to possess and distribute Ecstasy in violation of 21 U.S.C. § 846. In their motion now before the court, defendants seek to suppress all evidence obtained as a result of the government's allegedly illegal entry into Radomski's apartment and illegal arrests of both defendants. Additionally, Radomski argues that because he did not receive Miranda warnings before the police questioned him and did not give consent to search his apartment or his car until after the police conducted the search, his statements and all physical evidence recovered from his apartment and car must be suppressed. For the reasons stated below, the court denies defendants' motion to suppress.
I. Facts
From the testimony of Officers Mazurski and Ryan and defendants Radomski and Zawistowski at the suppression hearing, the court finds that the following events occurred at Radomski's apartment on the 2300 block of North Harlem in Chicago on the night of January 11, 2003. Following an investigative lead and hoping to discover Zawistowski's whereabouts, approximately eight law enforcement officers representing different state and federal agencies entered the common area of Radomski's apartment building through an unlocked outer door. The officers passed through the locked inner door of the building when another group of persons exited. Without warning Radomski that they were coming, the officers then proceeded upstairs to Radomski's apartment and assembled in the hallway outside his door.
Meanwhile, defendants Radomski and Zawistowski testified that they had fallen asleep in the living room of the apartment while watching a professional football game. Defendants both admitted that they had been up late partying and drinking the night before and had continued drinking beer throughout the day. Radomski also testified that sometime in the afternoon of January 11 he spoke with a friend on the phone who planned to come to the apartment later with more beer.
At approximately 10:30 p.m., the officers outside the apartment knocked loudly on the door several times and roused Radomski from his sleep. Radomski rose from the couch and walked toward his apartment door, thinking his friend had arrived. The officers outside heard the sound of footsteps approaching, but did not verbally announce their identity (though they claimed to have held a police badge up to the keyhole) until the door handle began to turn from the inside. As Radomski opened the door inward toward him, the officers announced their presence and stepped forward into the doorway. Radomski quickly took a step backward and put his hands up to his face — he claims in self-defense of the charging officers, the officers claim in preparation to attack them. Not being sure what Radomski's physical gesture actually meant and not waiting to find out, the two or three officers who came through the door first immediately wrestled Radomski to the ground and hand-cuffed him while the remaining officers entered and secured the apartment. During their protective sweep, the officers discovered Zawistowski sleeping on the floor of the living room, identified him as a suspect in the previous night's alleged drug deal, placed him under arrest, and read him his rights.
The officers then lead the subdued, hand-cuffed Radomski into his bedroom, where they maintain that within minutes of placing him in custody they read Radomski his Miranda warnings and gave him a consent to search form, which he signed. Radomski does not deny signing the form but he does insist that it was not presented to him until after the police had searched his apartment; he also claims that the form was handed to him folded-over so that he could not read what he was signing. The officers kept Radomski in his bedroom and questioned him about the events of the night before, when Zawistowski allegedly took $7,500 from a wired confidential informant in exchange for a promise to deliver 1,000 Ecstasy pills. Radomski made several statements in response to the officers' questioning, including that he had $400 cash in the pocket of his pants on the floor of the bedroom. The officers recovered the money and identified the serial numbers on the $20 bills as ones Zawistowski took from the confidential informant the previous day. During the course of their one to two-hour search of the apartment, officers recovered other matching currency stashed in the bathroom toilet's water tank but no drugs of any kind; officers also recovered two cellular phones from their inventory search of Radomski's vehicle.
II. Analysis
1. Entry into Radomski's Apartment
Defendants first contend that the government's warrantless entry into the apartment was illegal because it was not justified by consent or exigent circumstances not of the government's own making. Law enforcement officers may legally enter and search a private home without a warrant or probable cause if they obtain consent from the person whose property is to be searched, Schneddoth v. Bustamonte, 412 U.S. 218, 222 (1973), or if an exigent circumstance exists which requires immediate action by the police, United States v. Webb, 83 F.3d 913, 916 (7th Cir. 1996). Since it is undisputed in this case that officers entered Radomski's apartment without a warrant, it is the government's burden to prove by a preponderance of the evidence that the entry was otherwise reasonable due to consent or an exigent circumstance. United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000). Despite defendants' argument to the contrary, the court finds that the government has carried its burden by showing that Radomski consented to the officers' entry into his apartment.
Consent may be given in either a verbal or non-verbal manner, United States v. Cotnam, 88 F.3d 487, 496 (7th Cir. 1996), and the very act of opening a door and stepping back to permit entry by officers has been held to indicate consent, United States v. Walls, 225 F.3d 858, 863 (7th Cir. 2000). Effective consent must of course be voluntary and not the product of duress or coercion to be effective, and the court determines voluntariness by looking at the circumstances as a whole. Schneckloth, 412 U.S. at 219. Here, even as Radomski first heard and then saw that law enforcement officers (and not his friend) were at his door, he still opened his apartment door and stepped back, allowing the officers' entry. While Radomski may not have beckoned the officers inside, he continued to open the door and did not attempt to prevent the officers' entry once he realized their identity.
Defendants argue that Radomski's opening his door cannot in itself constitute consent, but the cases they cite as authority deal with situations where the defendant's consent was found involuntary because it was obtained via forced submission to police authority. See, e.g., United States v. Berkowitz, 927 F.2d 1376, 1388 (7th Cir. 1991). What happened in this case is different. Radomski testified that when he heard the knocking at his door he had just been taking a nap, had been drinking earlier in the day, and had been expecting a friend to arrive with more beer. He then walked over to the door, turned its handle, heard the police announce themselves, opened the door, and stepped back as they entered. The police did not use force to open the door, nor did they encourage Radomski to open the door under threat of arrest. It seems possible to the court that Radomski was caught by surprise by the officers' presence, but nevertheless, both the officers' conduct in knocking and announcing their identity and his act of voluntarily opening his door support the court's conclusion that the entry was legal.
Defendants argue that the officers violated the "knock and announce rule" codified at 18 U.S.C. § 3109, but even if the court found Radomski's consent constitutionally lacking and the entry illegal, the Seventh Circuit has foreclosed the suppression of evidence as a remedy for this kind of Fourth Amendment violation. United States v. Sutton, 336 F.3d 550, 552 (7th Cir. 2003); United States v. Langford, 314 F.3d 892, 894 (7th Cir. 2002).
Defendants also argue that the government's entry was illegal because it was not justified by exigent circumstances, or at least not circumstances not of the government's own making. Since the court finds that the government proved by a preponderance of the evidence that Radomski gave consent to the officers' entry, it is not necessary to decide whether the search also was justified by exigent circumstances. See Basinski, 226 F.3d at 833 (noting that government has burden of proof to show that its warrantless search was conducted pursuant to one of the recognized exceptions to the warrant requirement); United States v. Denberg, 212 F.3d 987, 991 (7th Cir. 2000).
2. Arrests of Radomski and Zawistowski
Defendants next argue that evidence must be suppressed because their arrests were illegal. Officer Mazurski testified that he physically restrained Radomski, tackling and cuffing him, because he posed a threat to the safety of him and his fellow officers. The officers on detail that night knew before they arrived at Radomski's apartment that he had a criminal history of assault and battery on police officers and others, that he once was employed as a physical trainer for a professional boxing champion, and that he was a tall, muscular individual. Mazurski recalled that immediately as he stepped into Radomski's apartment through the open door, Radomski put his hands up to his face and stepped backward into what Mazurski perceived to be a martial arts fighting stance. Taken in combination, these facts convince the court that the officers had reason to interpret Radomski's gesture of stepping back and putting his hands up as a preparation for physical assault. Although Radomski maintains that he stepped back and raised his hands in self-defense, the court need not resolve the issue of Radomski's intent. See Webb, 83 F.3d at 916 (evaluating exigent circumstances from officers' perspective).
Defendants discuss constitutional issues surrounding their arrests in conjunction with their argument that no exigent circumstances (meaning Radomski's threatening posture) justified the officers' entry into the apartment. However, since the court finds the officers' entry authorized by Radomski's consent, it will treat the issue of the officers' arrests of defendants separately.
Of the two witnesses — defendant Radomski, who had just risen from a nap after drinking beer all day and was likely surprised by the presence of several police officers at his door, and Officer Mazurski, who was alert and eager to quickly and authoritatively secure the apartment and subdue anyone inside — the court believes that Mazurski was a more reliable witness to the events that occurred in those first few minutes once the officers entered Radomski's apartment. As with the warrantless search, the government carries the burden of showing that its warrantless arrest was justified by an exigent circumstance. United States v. Lenoir, 318 F.3d 725, 730 (7th Cir. 2003). Officer Mazurski reasonably believed that Radomski posed a serious threat of danger to his team based on Radomski's history of physical assault and his immediate physical reaction to the officers' entry; thus, the court believes they were entitled to act quickly to minimize the risk of harm to them by physically restraining Radomski and placing him under arrest.
In this particular case, since the officers' entry of the apartment and arrest of Radomski was legal, their arrest of Zawistowski also was legal. Officer Ryan testified that he found Zawistowski sleeping on the floor in the living room while he conducted a protective sweep of the apartment just after entering. Recognizing Zawistowski as a suspect from their surveillance of his transaction with the confidential informant the day before, the officers placed him under arrest and read him his Miranda warnings. Under different circumstances, say if the officers' entry into Radomski's apartment had been illegal, Zawistowski might have had a stronger argument that his Fourth Amendment rights were violated. See, e.g., Minnesota v. Olson, 495 U.S. 91 (1990) (recognizing that overnight guests in another's home have protectible privacy interest under Fourth Amendment). But once the officers legally entered the apartment and identified Zawistowski as a suspect for whom they had been looking and had probable cause to arrest, the officers were justified in executing that arrest in order to prevent Zawistowski from fleeing the scene. SeeLenoir, 318 F.3d at 730 (exigent circumstances may justify warrantless arrest in private home). Furthermore, even if the court found Zawistowski's arrest to be illegal, it would not be appropriate to remedy the violation by excluding evidence particularly since Radomski consented to the search that produced the evidence. See United States v. Brown, 328 F.3d 352 (7th Cir. 2003) (exclusionary rule should not be used to make a person whose rights have been violated better off than if the violation had not occurred).
3. Miranda Warnings and Consent to Search Form
Finally, Radomski asserts that even if the government's entry into his apartment and arrest of him were legal, any statements he made and any evidence they seized must be suppressed because he was never given his Miranda warnings and he did not timely or knowingly give consent to search his apartment. With respect to the Miranda warnings, Officer Ryan testified that he read Radomski his rights, Officer Mazurski testified that he was present when it happened, and Radomski claimed that it never happened. As discussed above, the court believes that Radomski's acuity at the time of this incident was somewhat compromised by his abrupt awakening and prior consumption of alcohol. The court therefore credits the testimony of the officers and concludes that Radomski was given proper Miranda warnings. Accordingly, any of his statements made after receiving the warnings maybe admissible at trial.
Similarly, Officers Mazurski and Ryan both testified that Radomski received and signed the consent to search form minutes after having been taken into custody and read his rights; Radomski, in contrast, insists that he only signed the form after the police finished searching his apartment and vehicle and that he never read the form because it was folded over. The court is troubled by the fact that the consent to search form contains no indication of the time that it was signed, which in this court's experience is typical, but it is not convinced that this fact alone discredits the officers' testimony. The court therefore finds that Radomski timely signed the consent to search form.
Even if there is some doubt as to the exact chronology of events that transpired that night, the court does not find the discrepancies to be significant enough to warrant suppression of the physical evidence obtained. Moreover, the court would not exclude the $400 recovered here since Radomski himself told the police where to find it and effectively gave consent to the search of his pants pocket on the floor in front of him.
III. Conclusion
The court finds that the government's entry into Radomski's apartment and arrests of defendants were legal and that Radomski received proper Miranda warnings and gave timely consent to the search. Therefore, defendants Radomski and Zawistowski's joint motions to quash their arrests and suppress evidence are denied.