NAOMI REICE BUCHWALD, District Judge.
Defendant Joseph Steven Barone was arrested outside his home in New Rochelle, New York, on January 9, 2009 and charged with conspiracy to commit murder for hire and murder for hire, as well as possession of firearms by a convicted felon. On February 12, 2010, Barone moved, inter alia, for suppression of all physical evidence seized from his home, garage, and car on the day of his arrest—on the grounds that the items were obtained in violation of the Fourth Amendment.
The following facts are derived principally from the testimony of the defendant, five members of the Genovese Organized Crime Task Force of the Federal Bureau of Investigation ("Task Force")—Special Agent Gregorio Miceli, the case agent; Special Agent Michael Gaeta, then acting supervisor of the Task Force, who supervised the arrest team;
In early January 2009, the Task Force was conducting surveillance of Barone through field agents and a cooperating witness (the "CW"). Specifically, on January 7 and January 8, the CW recorded conversations with Barone in which the two discussed an alleged murder for hire plot. (4/22/10 Tr. at 16-18.) On Friday, January 9, 2009, Barone met with the CW for about an hour, during lunch. (Id. at 4.) Shortly after that meeting, agents debriefed the CW
After being informed of the CW's debriefing session, Supervising Agent Gaeta obtained verbal authorization from Richard Daddario, then the Chief of the Organized Crime Unit of the United States Attorney's Office for the Southern District of New York ("USAO"), to arrest Barone that day. Gaeta wanted to arrest Barone to ensure that the plot would not be carried out. (Id. at 5-6.) While Gaeta and Daddario discussed a potential search of Barone's residence in connection with the arrest authorization, (id. at 20), the agents did not apply for a warrant to search Barone's home because they concluded
After dispatching Special Agent Miceli to the USAO to begin preparing a complaint, Gaeta assembled his team of at least eight agents and detectives to effectuate Barone's arrest. (4/22/10 Tr. at 6, 21.) Some of the agents and detectives comprising the arrest team had been conducting field surveillance on Barone earlier that day. (See id. at 24-25.) For example, Detective Arrigo and others were stationed in the vicinity of Barone's residence, (6/15/10 Tr. at 31), while Special Agents Castner and Penza were among those who followed Barone on his way home from the grocery store with his then-girlfriend, Joanne. (Id. at 56, 66-67; see id. at 133.)
Between approximately 4:00 and 4:30 p.m. that day, Gaeta's team of agents and detectives arrested Barone in the driveway of his home. (Id. at 6, 106; 4/14/10 Tr. at 46, 60.) As Barone exited his car, carrying groceries, Gaeta, Arrigo, and possibly other agents—with guns drawn—placed Barone under arrest by handcuffing him in the back. (4/22/10 Tr. at 21-23; 6/15/10 Tr. at 133-34.) Gaeta also stated the nature of the charges against Barone. (Id. at 134.)
Agents then brought Barone and his girlfriend into the home "for security purposes" and to avoid making a scene in the quiet residential neighborhood. (4/22/10 Tr. at 7.) Once inside, several members of the arrest team commenced a security sweep of the house. Gaeta remained in the foyer with Barone, whom the agents had separated from his girlfriend. (Id. at 7, 41.) Gaeta asked Barone if he had any weapons, which Barone denied. (Id. at 7-8, 25.) Gaeta did not believe him. (Id. at 8.) According to Gaeta, he then advised Barone of his Miranda rights
Meanwhile, at least five other agents and detectives were conducting the protective sweep of Barone's approximately 2,500 square foot, raised ranch house. (Id.; see 6/16/10 Tr. at 160.) The sweep of the sparsely-furnished rooms, hallways, closets, and other areas began once the team brought Barone inside the residence and lasted for approximately fifteen minutes. (4/22/10 Tr. at 8; 6/15/10 Tr. at 54, 106; see id. at 37.) Special Agent Penza and Detective Arrigo both participated in the upstairs sweep. Penza looked in an upstairs closet and, upon discovering the entry to an attic in the closet ceiling, lifted his head up into the small attic crawlspace. (6/15/10 Tr. at 71-72.) Detective Arrigo testified that he first looked around Barone's master bedroom and, finding nothing there or in the master bathroom, then proceeded down the hallway into a smaller bedroom opposite the master bedroom. (Id. at 25-26.)
In that second bedroom, after spotting various items on the floor in the middle of the room, (id.), Arrigo observed a long, narrow closet, with open French doors, behind and to the right of the bedroom door along the perpendicular wall. (Id. at 26, 38-39; see id. at 130.) Arrigo testified that, as he took about a quarter step into the back of that closet, he spied a gift bag in the middle of the closet floor by his feet. (Id. at 26, 35-36, 44.) According to Arrigo, the gift bag was wide open so that, standing over it, he could see a box of ammunition at the top of the bag. (Id. at 26, 37)
Just after seizing the gun from the closet, Arrigo called out and went downstairs to inform Gaeta, who was still speaking with Barone in the foyer. (Id. at 28; see id. at 106.) Gaeta confronted Barone with discovery of the gun (4/22/10 Tr. at 8-9), telling Barone that he had obviously lied when he denied having, any weapons. (Id. at 38.) Gaeta asked Barone to tell the agents whether there were any other weapons in the house-and if so where they were-so they could secure the area. (Id.) At that point, Barone told Gaeta, Special Agent Castner, and possibly others, that he had another gun inside an "iron box" in the garage, which Castner located after two attempts. (6/15/10 Tr. at 50-51.)
In addition, once Barone was confronted with the discovery of the first gun—either before or possibly while Castner went to retrieve the second gun from garage— Barone verbally consented to a full search of his house, which began at approximately 4:30 p.m. (Id. at 28, 52; 4/22/10 Tr. at 9; see also Gov't Ex. 3501-4 (noting the time).) Barone denies, or at least does not recall, giving the agents any verbal consent to search his house. (6/15/10 Tr. at 105-106.)
As part of the full search, and after he retrieved the second gun from the garage,
At least an hour
Once he arrived at the house, Trombetta went to the foyer to meet with Barone, who had remained sitting there near Agent Gaeta since his arrest in the driveway. (Id. at 78; see id. at 106.) Trombetta and Barone spoke face-to-face, with many other detectives and agents, including Gaeta, working and moving all around them. (Id. at 78-80, 85, 89.) Trombetta perceived Barone as "nervous" and "scared" throughout their brief conversation, which lasted only a matter of minutes. (Id. at 79-80.) Barone, in a "slightly agitated" tone, apologized to Trombetta for the circumstances of his arrest. (Id. at
Barone also testified to the circumstances of his conversation with Trombetta. After they spoke for a few minutes— with Barone apologizing to Trombetta for not telling him about the situation for which he was arrested and reassuring his handler that nothing was going to happen, Barone asked Trombetta if he could help him out. (Id. at 101-102.) Trombetta then spoke with Gaeta in another room, while Barone waited in the foyer, still in handcuffs. (Id. at 102.) When Trombetta returned, he indicated that the FBI wanted Barone to work for them, and emphasized that Barone would have to be truthful if he were going to do so. (Id.)
In any event, following his brief conversations with Barone, Trombetta observed no change in Barone's demeanor or conduct. (Id. at 92, 99.) Trombetta departed after a short time, possibly fewer than fifteen minutes, leaving Barone with the other agents at the residence. (Id. at 92, 96.) It was after his conversations with Trombetta that Barone opened up his locked safe to reveal the cash mentioned above. (4/22/10 Tr. at 37; 6/15/10 Tr. at 131.)
Ultimately, and soon after Barone opened the safe, agents transported Barone from his house to FBI Headquarters at 26 Federal Plaza for processing that evening. (4/22/10 Tr. at 11, 27-29.) Following Barone's arrival at headquarters and between 7:00 and 9:00 p.m.,
As Gaeta and Miceli were completing Barone's processing that evening, it was their understanding that Barone intended to cooperate with the FBI.
The Fourth Amendment protects the "[r]ight of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. Const. Amend. IV. Because a person's right to be free from "unreasonable governmental intrusion" in his home "stands at the very core of the Fourth Amendment, [the Supreme Court has] firmly established the basic principle ... that searches and seizures inside a home without a warrant are presumptively unreasonable," Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), subject only to certain recognized exceptions. See, e.g., id.; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
In this case, because the Task Force arrest team searched Barone's home without a warrant, the government must establish that one of the recognized exceptions to the warrant requirement applies.
In addition, we consider whether the government has established that the "taint" of the primary illegality had dissipated such that some or all of the evidence seized following Barone's consents to search may be admissible. Balancing the relevant factors—and notwithstanding Barone's apparent willingness to cooperate with the FBI after his house was searched and his processing was completed—we find that the taint had not been purged and thus, that the consents themselves and the additional evidence seized were "fruit of the poisonous tree."
Accordingly, we hold that all physical evidence seized from Barone's home on the date of his arrest must be suppressed.
The government argues that the arrest team was permitted to enter and search Barone's home without a warrant in order to conduct a "protective sweep" following Barone's arrest. We consider both potentially applicable categories of "protective sweeps" below.
At the hearing, Agent Gaeta suggested that the FBI's practice of permitting cooperative arrestees to change clothes prior to their being brought in for processing partially justified the protective sweep of Barone's bedroom and closet, where the first gun was seized. (See 4/22/10 Tr. at 7.) While neither Agent Gaeta nor the government further emphasized this suggested rationale, we briefly address it here for the sake of completeness. Indeed, given the facts of this case, such a rationale cannot withstand even cursory analysis.
When a person is arrested inside the home, one strand of the so-called "protective sweep" doctrine, drawing upon the "search incident to arrest" exception to the warrant requirement, permits arresting officers, "as a precautionary matter and without probable cause or reasonable suspicion, [to] look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). This exception to the warrant requirement reflects the officers' need to ensure that an arrestee not have access to a weapon or to destructible evidence. See United States v. Perea, 986 F.2d 633, 643 (2d Cir.1993). That concern is absent where the area to be searched is not within the arrestee's reasonably immediate reach, or "grab area." United States v. Blue, 78 F.3d 56, 60 (2d Cir.1996); see Arizona v. Gant, ____ U.S. ____, 129 S.Ct. 1710, 1719, 173 L.Ed.2d 485 (2009).
The "grab area" prong of the Buie exception can apply in certain circumstances when an arrestee is afforded access to a particular area or item. See, e.g., United States v. Murphy, 16 F.Supp.2d 397, 400 (S.D.N.Y.1998); see also United States v. Kiyuyung, 171 F.3d 78, 80, 83 (2d Cir.1999) (defendant's request to use the bathroom in her apartment after being arrested outside permitted security sweep of path to the bathroom) (vacating and
Of course, conducting a protective sweep of Barone's immediate "grab area," without more, could not have justified bringing Barone into the house after he was arrested outside.
Indeed, there is no testimony that Barone actually requested to enter the house or its upstairs rooms, whether to change or gather clothes or to use the bathroom. (See 4/22/10 Tr. at 41.) Rather, at least during the time of the initial security sweep in question, Barone remained handcuffed in the foyer, a floor away from the upstairs bedroom and closet where the first gun was found. (Id. at 8, 41.)
Under these circumstances, the agents were not permitted to conduct the sort of precautionary "grab area" sweep announced in Buie. See Perea, 986 F.2d at 643.
The government's main argument in support of the agents' entry and sweep of Barone's house was that it was the sort of "protective sweep" needed to safeguard arresting officers from potentially dangerous third persons in hiding. This argument, too, is unavailing.
In Buie, the Supreme Court held that, in addition to the limited area "immediately adjoining the place of arrest," the Fourth Amendment permits officers executing an arrest inside a home to conduct a warrantless protective sweep of other parts of the residence if there exist "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." 494 U.S. at 334, 110 S.Ct. 1093. The Supreme Court made clear that, if justified by the circumstances, this sort of protective sweep cannot be "a full search of the premises," but must be limited in both space and time: it "may extend only to a cursory inspection of those spaces where a person may be found" and may last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id. at 335, 110 S.Ct. 1093 (emphasis added).
In addition, the Second Circuit has held that law enforcement officers may enter a defendant's home to perform a protective sweep even when the defendant is arrested outside of that home. To assess security sweeps incident to arrests outside the home, the Court of Appeals "applie[s] a standard comparable to the reasonable suspicion test announced in Buie." Oguns, 921 F.2d at 446. "[S]uch an entry [is] permissible if the arresting officers `(1) had a reasonable belief that third persons [were] inside, and (2) a reasonable belief that the third persons [were] aware of the arrest outside the premises so that they might destroy evidence, escape, or jeopardize the safety of the officers or the public.'" Id. (quoting United States v. Vasquez, 638 F.2d 507, 531 (2d Cir.1980)).
The Court of Appeals has made clear, however, that mere lack of information as to the presence of other persons on the scene cannot amount to reasonable suspicion. Indeed, when there is "nothing in the record from which a reasonable ... officer could have inferred that there was a specific danger of unknown third-parties hiding in [the arrestee's residence]," a protective sweep of the home will be deemed unlawful. See United States v. Gandia, 424 F.3d 255, 264 (2d Cir.2005); United States v. Moran Vargas, 376 F.3d 112, 116-17 (2d Cir.2004).
In Gandia, which the government cites, the Second Circuit found a "protective sweep" unlawful because the only articulable facts offered in support of the search were: "(1) the officers' knowledge that [the defendant] had recently emerged from a heated argument; (2)[a] police radio call which informed them that [the defendant] might have a gun; (3) the fact that [the defendant] stated he did not have a gun prior to being questioned about it; and (4) the fact that the officers had not recovered the gun during their patdown frisk of [the defendant]." 424 F.3d at 264. The Court of Appeals found nothing in these facts or elsewhere in the record from which a reasonable officer could infer "a specific danger of unknown third-parties hiding in [the] apartment." Id. Indeed, the Court of Appeals reasoned that "even if we agreed with the government's argument that where `there is a strong reason for the
Distinguishing and extrapolating from Gandia, the government argues that the arrest team's protective sweep was justified here because, in addition to the circumstances found wanting in Gandia—i.e., a recent discussion about committing violent crime, the belief that the defendant possessed a firearm, the defendant's denial of possessing a firearm,
Specifically, Agent Gaeta testified that "our concern in this case was the fact that [Barone] had relayed to the cooperator that he had access to a gun and was attempting to get it for him immediately, in addition to the fact that there were others unidentified that were involved in the murder-for-hire plot." (4/22/10 Tr. at 41; see id. at 5 (describing potential co-conspirator as a contingency).) That the other person Barone suggested he could hire as a contingency plan if the CW were unable to carry out the murder was a "known unknown,"
Indeed, although the Task Force had been conducting surveillance on Barone throughout that day, not a single agent testified at the suppression hearing that he was aware at the time of the arrest of any information or specific concern that any third persons were or would be at Barone's single-family house, (see 6/15/10 Tr. at 32, 45, 56, 70), or recalled any sights or sounds on the scene that would have suggested that someone was inside that house. (See id. at 45, 70, 73.) Compare Oguns, 921 F.2d at 446 (upholding validity of sweep where reasonable suspicion was based on information from a cooperator implicating both the defendant and his roommate, and where agents arresting defendant just outside of a two-family house noticed that the door to the defendant's apartment was ajar), with Gandia, 424 F.3d at 264 (finding no information to support a protective sweep, and distinguishing cases where officers heard or observed evidence that others were present on the scene).
While the absence of such concrete information or circumstantial evidence on the scene is not necessarily dispositive, see 3 Wayne R. LaFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 6.4(c) (4th ed.), the facts that Gaeta and his arrest team reasonably suspected the potential involvement of an unknown coconspirator in a plot which may have been imminent, and suspected the presence of
In this connection, the Second Circuit's reasoning in Oguns is particularly instructive:
921 F.2d at 447. Indeed, the risk of such illegitimate "expansion" was borne out in this case, given that the agents brought Barone into the residence from the very start,
Thus, in the absence of any alternative justification offered by the government (or apparent on the record), we hold that the entry and initial search of Barone's home was an unconstitutional intrusion. Accordingly, the gun seized from the upstairs closet—as well as, for the reasons discussed in Part III, infra, the other evidence seized thereafter—must be suppressed as "fruit of the poisonous tree." See generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Before considering the admissibility of the remaining evidence, however, we turn to an alternative ground on which the first gun should be suppressed.
Even assuming, arguendo, that the agents acted lawfully in entering Barone's home with the defendant and commencing a "protective sweep" of the residence, we would nonetheless hold in the alternative that the seizure of the first gun from the upstairs bedroom closet was itself unlawful because the government failed to establish that the gun was in "plain view." See Kiyuyung, 171 F.3d at 83; Perea, 986 F.2d at 639. The "plain view" exception permits the warrantless seizure of an object, "if police are lawfully in a position from which they view [the] object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object." Kiyuyung, 171 F.3d at 83 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)); see Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Patently incriminating evidence in plain view during a proper security check may be seized without a warrant. See, e.g., Kiyuyung, 171 F.3d at 83.
Here, there is no dispute that Detective Arrigo seized the first gun from inside a case, which was inside a gift bag with handles, which, in turn, was placed somewhere in the upstairs closet. (See 6/15/10 Tr. at 26, 100-101.) As noted, that closet was slightly deeper than the width of a suit hanger and was split into two vertical sections, with top-to-bottom, eighteen-inch wide shelves on the left, and a clotheshanging rung on the right, occupying more than half the width of the closet. (Id. at 100, 130.) The critical issue of fact for this Fourth Amendment analysis
Whether Detective Arrigo's testimony demonstrated merely his stale recollection of detail or his lack of credibility, the bottom line is that we cannot credit his description of how and where he observed the gift bag and ammunition box, which he said led him to discover the gun itself. In contrast, Barone's testimony, that the gift bag was "tucked under" the bottom shelf of the closet, rang true both in its detail and in light of the record here.
Arrigo's recollection almost a year and a half after the arrest date at issue was somewhat internally inconsistent—and was, of course, at odds with Barone's more detailed description of a room and closet with which Barone, the homeowner, is more familiar. For example, Arrigo's testimony was not consistent as to whether, before he event went into the closet, he could already see that nobody was inside, or whether he needed to take a "one quarter step" to confirm that no one was hiding there—at which point he looked down and saw the open gift bag and ammunition at his feet. (Compare 6/15/10 Tr. at 38-40, with id. at 43.) Of greater note, he testified that when he entered the bedroom, closed the door, and turned around, he was
In contrast, Barone testified that the door to the bedroom and the French doors to the closet were on perpendicular walls and opened toward each other—such that opening the bedroom door would have pushed the closet door closed when Arrigo entered that bedroom. (Id. at 129-30.) He explained the layout of the closet in detail, and recalled that he had a watch case, a clear glass case, and some other items on the shelves on the left hand side. On the floor underneath the bottom shelf, the white gift bag was tucked away, with its wire handles "ben[t] a bit" to fit in the space under that shelf, which was less than eighteen to twenty inches. (Id. at 100-101.)
In light of the evidence already adduced before he testified, this Court was initially skeptical of Arrigo's testimony that a gift bag containing an encased gun and ammunition box—packaging otherwise consistent with an intent to conceal (unlike, for example, a loaded gun placed on a shelf for easy access)—was nonetheless sitting in the middle of the floor of an open closet.
Emphasizing that Barone denied signing the consent to search form at 26 Federal Plaza, the government contends that Barone is not credible. While, as noted, we do not need a handwriting expert to recognize Barone's signature, we also do not need to parse the credibility of every aspect of his testimony in order to find credible his description of the layout of his own home and the details of how he admittedly concealed a gun bag in the upstairs closet. Indeed, the notion that Barone concealed the gun and ammunition bag under a shelf rather than in plain view on the closet floor is supported by his acknowledgment at the hearing that he knew it was against the law for him to possess guns. (See id. at 109.)
In contrast, and as indicated above, we do not credit Detective Arrigo's testimony that he found the bag and spied the ammunition box in plain view. With the gift bag tucked under the closet shelf and topped with pink wrapping cloth or paper, the ammunition box could not have been in plain view during an otherwise proper "protective sweep" of that closet. Under these circumstances, we reject the government's argument that Arrigo could not have had any motivation to "shade the truth" at the hearing. Accordingly, we hold that, even assuming the protective sweep was otherwise lawful, the seizure of
Under either analysis, the first gun must be suppressed.
As discussed in Part I, supra, the first gun plainly must be suppressed as "fruit of the poisonous tree" because the entry and protective sweep of Barone's home was illegal.
We reject at the outset the premise of the government's alternative argument that, because the remaining physical evidence—including the second gun found in the garage—was obtained pursuant to Barone's subsequent consent to a full search of his home and not during the protective sweep, it could not be "tainted" by the protective sweep even if the entry and sweep were found to be illegal. (Opp. Br. at 11.) First, as the government's briefing and oral arguments implicitly acknowledged, the "fruit of the poisonous tree" doctrine applies to consents following an illegal entry as well as to physical evidence seized. See Oguns, 921 F.2d at 447.
Second, and more importantly, the government's argument depends upon a myopic framing of the facts. The record is clear that before Barone consented to any full search of his home, Agent Gaeta confronted Barone with the agents' discovery of the first gun—and the fact that Barone had lied to them—and asked Barone if there were any other weapons in the house. (4/22/10 Tr. at 9, 38.) Analytically, then, in addition to being direct "fruit" of the illegal entry, Barone's consent is also derivative "fruit," because Agent Gaeta exploited the tainted gun in seeking further consent to search. See, e.g., United States v. Tortorello, 533 F.2d 809, 814 (2d Cir. 1976) (reasoning that agents' use of information obtained from an illegal search in order to obtain consent to further "voluntary" search may taint that consent).
Mindful that a finding of attenuation "ordinarily involves [a] showing that there was some significant intervening time, space, or event," Vasquez, 638 F.2d at 528; see also United States v. Valentine, 591 F.Supp.2d 238, 247 (E.D.N.Y.2008), we consider the four attenuation factors in
As for the first factor, although Barone testified that he was not Mirandized until after he was taken by van from the house to Federal Plaza, (6/15/10 Tr. at 134-35), Agent Gaeta clearly recalled that, after entering the residence with Barone and asking whether he had any weapons, he provided Barone with Miranda warnings. (4/22/10 Tr. at 8.) We credit that testimony. That Miranda warnings were given following the illegal entry, and that Barone decided to speak with Gaeta in an attempt to "work it out," weighs in the government's favor for attenuation purposes.
There is no dispute that after he received his Miranda warnings, Barone spoke to Agents Gaeta and Trombetta, relying on his existing relationship with the FBI in an effort to talk his way out of the situation in which he found himself. However, that is quite different from the government's suggestion that Barone had decided to cooperate shortly after his arrest. Indeed, the fact that Barone lied to Gaeta about the presence of guns immediately before receiving his Miranda warnings would seem to undermine that argument.
As the government concedes that very little time elapsed between the illegal entry and Barone's consent, the "temporal proximity" factor merits little further discussion. Indeed, while the precise timeframe between the illegal entry and Barone's consent to search is not clear, fifteen minutes would be the maximum spread. In addition, the temporal proximity between Agent Gaeta's confronting Barone with the gun (which was either the fruit of the illegal sweep or was otherwise illegally seized because it was not in "plain view") and Barone's consent to search the garage and house was immediate. (4/22/10 Tr. at 9, 38.)
"[A]s 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." United States v. Snype, 441 F.3d 119, 135 (2d Cir.2006). However, the record here is devoid of any significant intervening circumstances other than what the government frames as Barone's "intervening consents," for example, when he repeated his explanation to Agent Castner regarding the location of the second gun in the "iron" box. (See 6/16/10 Tr. at 176.) Again, this line of argument begs the question: to carry its burden to establish that Barone's consents "[were] sufficiently ... act[s] of free will to purge the primary taint of the unlawful invasion," see Oguns, 921 F.2d at 447, the government must show that "the taint of the initial entry," and, in this case, of Agent Gaeta's exploiting the fruit of that illegal entry by confronting Barone with the gun, "had been dissipated before the `consents' to search were given." Id. (emphasis added).
Nor did Agent Trombetta's testimony support the government's attenuation argument. Trombetta's testimony described a brief conversation with Barone, which lasted a matter of minutes (clearly less than fifteen), and which did not address the substantive charges in the case or anything about proactive cooperation beyond encouraging Barone "to be truthful." Trombetta also testified that his relationship with Barone was "professional"—that is, he did not give any indication that he was a trusted confidante of Barone's, which could have changed the nature of their conversation and possibly the circumstances at the house. Furthermore, the conversation itself took place in the middle of the ongoing search, with other agents and detectives working all around them. (Id. at 89, 93.) Indeed, Barone's conduct and demeanor did not change after his conversation with Trombetta—he remained "scared and nervous." (Id. at 91-92.) Cf. 6 LaFave, Search and Seizure § 11.4(b), at 297 & n. 184 (noting that consultations with a close family member, friend, or parole officer at a defendant's request have been treated as intervening circumstances where the defendants' conduct changed thereafter) (collecting cases).
Accordingly, we cannot find any significant "intervening circumstances" that would support the government's argument for attenuation here.
The government argues that the last factor, the "purpose and flagrancy of the official misconduct" weighs heavily in favor of attenuation (and thus, admissibility) here. We disagree. Regardless of the motivations of the agents, who had obtained authorization for the arrest with the understanding that they lacked probable cause for a search of Barone's home, there were, as discussed, several significant issues with respect to the search.
First, as noted, the agents did not believe they had probable cause for a search warrant. Further, there is some indication in the record that despite, or perhaps because of, that understanding, the agents planned to conduct a protective sweep and speak to Barone inside his residence after arresting him outside the home. (See 4/22/10 Tr. at 22-23.) For example, Agent Gaeta testified that once he knew they were going to arrest Barone, he called Agent Trombetta to see if he could "meet [the team] at Mr. Barone's residence so he could speak to Barone." (Id. at 28.) This call suggests that Gaeta may have planned to remain in the residence after the arrest was made. Moreover, Agent Penza's testimony that the team entered the house to "to get in, ensure that the house was secure and safe, and then move ahead with the process, whatever it would be," could reveal a purpose to remain in the residence beyond completion of the protective
Second, the agents entered Barone's home without a warrant—crossing a clear Fourth Amendment threshold—and without any articulable, reasonable basis to suspect that third parties were inside.
Third, once inside, the agents' purported "protective sweep" was excessive in duration and scope—and entailed the seizure of a gun which was not in plain view.
Fourth, the agents clearly could not have justified the protective sweep as an extension of Barone's "grab area" under the circumstances here.
Fifth, not one of the eight to ten arresting agents obtained a written and signed consent to search from Barone on the scene.
Considering these issues together—and particularly in light of the established law in this area—the official misconduct here seems flagrant indeed. If anything, this factor weighs against the government's position.
In sum, upon balancing the relevant attenuation factors, we cannot conclude that intervening events satisfactorily severed the connection between either the arrest team's illegal entry or Agent Gaeta's exploitation of the illegally-seized first gun and Barone's consent. Accordingly, the taint of the primary illegality had not dissipated and the physical evidence seized following Barone's "consents" must, like the first gun seized from his closet, be suppressed.
We are not unmindful of the impact of our decision on this case going forward. However, we are equally mindful of our sworn duty to uphold the Constitution. Given the numerous violations of the
For the foregoing reasons, Barone's motion to suppress is GRANTED in its entirety.
In addition, Barone testified that the placement of the bedroom door and closet doors was such that one could not open the bedroom door to find both closet doors open, because the former would have pressed against and closed one of the closet doors. (See id. at 129-31.)
In addition, since the government further argues that the defendant's consent to search meets the requirements of the "attenuation" exception to the "fruit of the poisonous tree" doctrine, the government bears the burden of proving that such consent was "sufficiently an act of free will to purge the primary taint of the unlawful invasion." United States v. Oguns, 921 F.2d 442, 447 (2d Cir.1990) (citation and internal quotation marks omitted). The parties do not dispute the applicable burdens here. (See 6/16/10 Tr. at 143, 171.)
Similarly, the places and manner in which the agents testified to conducting the sweep seem somewhat inconsistent with the purported purpose of locating dangerous persons in hiding. First, there was no testimony that anyone searched the basement, a classic hiding place, as part of the sweep. (See 4/22/10 Tr. at 40; 6/15/10 Tr. at 61.) While the agents' testimony that the bulletproof vest was not discovered in the basement until after Barone consented to the full search of the home does not necessarily establish that the basement was not also part of the protective sweep, the government concedes that the burden to fill that gap in the record was theirs. (See 6/16/10 Tr. at 171.) In addition, Agent Penza's testimony that as part of the protective sweep he looked in an upstairs closet and, spying an entry to the attic in the closet ceiling, lifted his head up into what turned out to be a small attic crawlspace, (6/15/10 Tr. at 71-72), was notable because Penza's casually hoisting his head up into that attic space seems inconsistent with a search for potentially dangerous hidden persons.
While, again, we need not find that Barone's arrest was pretext for a search, we nonetheless note that the testimony or lack thereof regarding how the search was actually conducted seems to undermine its purported justification as a "protective sweep" for dangerous persons.
Id. at *4. Given the totality of the circumstances discussed in this c opinion, particularly the agents' exploitation of the illegally seized first gun to demand the location of any other weapons, and their threat to break the safe if Barone did not open it, the verbal "consents" Barone gave at his house seem far more like mere "acquiescence" to the agents' authority than the product of his truly "free and deliberate choice." See id.
