The opinion of the court was delivered by: Mary L. Cooper United States District Judge
I. FINDINGS OF FACT A. Issuance of the search warrants
B. Preparations for search warrant execution
C. Events at apartment prior to the arrest
D. Events at both premises subsequent to the arrest
E. Events during post-arrest transport of defendant
F. Indictment and prosecution
II. CONCLUSIONS OF LAW A. Fourth Amendment: The search warrants
B. Fourth Amendment: Seizure and arrest of defendant
C. Fourth Amendment: Conduct of the search
D. Fifth Amendment: Pre-arrest statements
E. Fifth Amendment: Post-arrest statements during transport
F. Physical evidence: The firearms and ammunition
A grand jury returned a one-count indictment charging that on or about June 26, 2007, defendant, Raymond C. Fautz, having previously been convicted of a felony, knowingly possessed a loaded .22 caliber Smith and Wesson handgun, in violation of 18 U.S.C. § 922(g)(1). Defendant has filed an omnibus motion seeking to suppress (1) all property, including the charged firearm, seized during the execution of search warrants on that date; and (2) all statements made by defendant allegedly in violation of the Fifth and Sixth Amendments, and all evidence obtained from those statements.
The Court conducted an evidentiary hearing and has considered the arguments of the parties in their briefs and oral argument. This opinion sets forth our rulings on the suppression aspect of the motion pursuant to Federal Rule of Criminal Procedure 12(d). We will suppress defendant's pre-arrest statements, but we will deny the motion as to his post-arrest statements and the physical evidence.*fn1
The Court finds the following facts, based upon the court records and the evidence submitted on this motion. Most of the chronological facts are undisputed. Such conflicts as arise in the evidence are noted and resolved based upon our evaluation of credibility and the record.
A. ISSUANCE OF THE SEARCH WARRANTS
Defendant, Raymond C. Fautz, previously pled guilty and was sentenced in this United States District Court for violating 18 U.S.C. § 1001 (false statements), a Class D felony, in connection with misbranded parts supplied to United States Department of Defense ("DoD") prime contractors. United States v. Raymond C. Fautz, Crim. No. 96-179-02 (D.N.J.), Judgment of Conviction filed 3-10-97 (Crim. No. 96-179-02, dkt. 14). He received a sentence of three years probation, with a restitution amount to be paid to the Department of Defense. (Id., dkt. 14 at 3.)*fn2
The instant action commenced with a criminal complaint filed against Mr. Fautz in this Court on June 26, 2007, followed by an indictment filed on May 14, 2008, and a superseding indictment filed on April 9, 2009. (Complaint, Mag. No. 07-1127, dkt. 1; Indictment, Crim. No. 08-352, dkt. 1; Superseding Indictment, id., dkt. 15.) The charge against defendant in this case is that on or about June 26, 2007, in the District of New Jersey, defendant, having been convicted in a federal court of the felony offense in Criminal Action No. 96-179, did knowingly possess ammunition and a firearm, namely one .22 caliber Smith and Wesson Model 34 handgun bearing serial number M157464, loaded with four rounds of ammunition. (Superseding Ind., dkt. 15.)*fn3 The pending suppression motion pertains to the events that surrounded the arrest of Mr. Fautz at his home on June 26, 2007, during the execution of a federally-issued search warrant.
The Department of Defense has an Office of Inspector General, which includes a unit named Defense Criminal Investigative Service ("DCIS"). DCIS maintains offices in various locations around the nation. At the times relevant to this action, DCIS had an office named the DCIS New Jersey Resident Agency, located in Edison, New Jersey. DCIS Special Agent Zachary P. Hatcher ("Agent Hatcher") was one of the agents assigned to that office.
On June 20, 2007, Agent Hatcher, accompanied by an Assistant United States Attorney, appeared before U.S. Magistrate Judge John J. Hughes at the federal courthouse in Trenton, and presented an Application and Affidavit for Search Warrant, seeking to search two specified premises in Morris County, New Jersey. The addresses were an apartment in Denville and a storage facility in Montville. The Magistrate Judge witnessed the signature of Agent Hatcher on the sworn Application and Affidavit, and issued two search warrants, one for each specified location. Those matters were sealed on the docket at the time the search warrants were issued.*fn4
Agent Hatcher's search warrant affidavit ("Affidavit") was Attachment B of the Application. It was 22 pages long, single-spaced. (Dkt. 5-2 at 2-3, 5-22.) The introductory text stated:
I am currently involved in an investigation into violations of Title 18, United States Code, Section 1001 ("False Statements"), Section 287 ("False Claims"), and Section 1343 ("Wire Fraud") ("Specified Federal Offense") by Electronic Connections Incorporated ("ECI") and Transistor and Electronic Components Inc. ("TEC"). ECI was created by [named individual], President of ECI, on December 29, 1994, as a world wide independent stocking distributor of transistors, capacitors, tubing, hardware, terminal blocks, and electronic connectors for the aerospace, military and commercial industries. Investigation revealed ECI in-fact purchased non-conforming, substitute, remarked, military parts from Raymond Fautz ("Fautz"), owner of Transistor and Electronic Components Inc. ("TEC").... TEC, in this case, manufactured and distributed electronic parts to ECI. ECI purchased the subject military parts from TEC and supplied those parts and certifications to the DoD. Investigation revealed that TEC is currently operating at [apartment address], Denville, NJ 07834 and maintains a storage unit at [storage facility address], Montville, NJ 07045. This Application and Affidavit is submitted in support of a request for a search warrant to search [the premises at those two stated addresses].
Based upon testing reports, contract files, and other documentation the investigation revealed probable cause that through ECI, TEC provided parts to the DoD, which were re-branded, re-marked, substitute and non-conforming items which cannot be used in the various military applications they were designed for and pose a serious safety concern to the applications and personnel operating those systems. (Id. at 6.)
The Affidavit stated that Agent Hatcher had received information from
the DoD Supply Center, Columbus, Ohio ("DSCC"), Counterfeit
Material/Unauthorized Product Substitution group that 56 DSCC purchase
orders awarded to ECI valued at $251,711.98 had been tested and were
found to contain re-branded, re-marked, substitute and/or
non-conforming military parts. Of that group of 56 purchase orders, 47
were identified as critical application items. (Id. at 7.)*fn5
The Affidavit stated that investigation revealed that between
February 26, 2001, and August 21, 2004, ECI entered into approximately
429 contracts with the DoD totaling approximately $1,085,045.39; that
TEC supplied all of the parts on the contracts ECI had with the
government; and ECI paid TEC approximately $858,066.84. (Id.)
The Affidavit described four of those defense contracts in detail. The contracts were for transistors, semiconductors, connector plugs and thyristors [sic] to be used in military Tier I Weapons Systems including the Minuteman Missile, the B-1B Bomber, and the Nimitz class submarines, and all four contracts were for critical application items. It stated that the contracts cited the exact parts and exact companies that manufactured those parts, and ECI responded to the bid specifications by bidding that it would provide the exact part number manufactured by the exact company cited in the solicitation. (Id.) The Affidavit averred:
The parts supplied to the DSCC resembled the required parts cited in the contract. However, the parts TEC provided to ECI which were then supplied to the DSCC were counterfeit parts. As more fully set forth below, the original markings on the parts were removed and a new part number was applied. Based upon the DSCC Electronic Testing Center ... reports, the items received from ECI were re-stamped with the part number ... cited in the contract. However, the presence of the original markings on the parts were still visible beneath the new applied markings. Based upon investigation, these parts were purchased from Raymond Fautz, TEC. (Id.)
The Affidavit explained that the investigation to date had included execution of a search warrant at ECI headquarters, which yielded ECI vendor files and other business records. (Id. at 7-8.) Those ECI records showed that the subject parts were obtained by ECI from TEC, after ECI had sent TEC the DoD bid specs for each prospective contract and TEC informed ECI if it could manufacture the part specified in the contract. (Id. at 11.) When the contract was awarded to ECI, TEC created the packing slip and any required Certificate of Conformance ("CoC"), to accompany the parts purchased by ECI from TEC. The parts were then purchased directly by ECI from TEC, with the accompanying packing slips and CoCs supplied by TEC. (Id. at 11-12.) DoD testing of parts under the specified ECI contracts revealed that the parts supplied were deficient, and they showed evidence of re-branding. DoD had thus determined that those parts were not the items requested in the original contracts and were in fact substitute/non-conforming parts, accompanied by falsified packing orders and/or Certificates of Conformance.*fn6 The warrant-seized ECI records showed that its vendor in each case was Mr. Fautz's company, TEC. (Id. at 12-19.)
Agent Hatcher's Affidavit described additional avenues of investigation to date. It stated that TEC had a website giving an email link, a local New Jersey phone number, an 800 phone number, a fax number, and a post office box mailing address. The investigation had included a search on a federal government registry called Central Contractor Registry, a central repository of all companies and agencies wanting to do business with the federal government. TEC was listed on that registry with the same phone and fax numbers, and Ray Fautz was listed as the point of contact for TEC. (Id. at 19-20.) Those telephone and fax records were obtained from the telephone company and reviewed by Agent Hatcher. His interview of a telephone company official revealed that the telephone line for all those numbers was physically located at the Denville apartment address specified in the Affidavit. (Id. at 20.)
The investigation set forth in the Affidavit also included information obtained from a "cooperating witness that works for a government contractor," describing the procedure followed by Fautz and the cooperator for quoting and obtaining government contracts for Fautz to supply the parts to the cooperator. (Id. at 20.) That procedure reportedly used the TEC fax number, oral telephone contact between Fautz and the cooperator, and actual supply of parts by TEC to the contractor for re-supply to the government. (Id.)
The Affidavit stated that the investigation had progressed in March, 2007, to consensually monitored telephone conversations and faxes at the TEC numbers, between Mr. Fautz and an individual identified by a "source number" ("source person"), under the supervision of DCIS agents. (Id. at 20-21.) As that aspect of the investigation progressed into April, 2007, Agent Hatcher provided the source person with various (dummy) DoD Requests for Quotations ("RFQs"), and consensually monitored the ensuing phone and fax communications between them, which included quoted statements in particular conversations with Fautz. (Id. at 21-22.) Agent Hatcher's Affidavit said as to some of those quoted exchanges, "[b]ased upon this conversation there is probable cause to believe Fautz re-marked, re-branded, substituted, or otherwise provided non-conforming items to the government for supply to the DoD." (Id. at 22.)
Investigation had also focused upon Mr. Fautz's storage location as of April, 2007. According to the Affidavit, Agent Hatcher interviewed personnel at the storage facility at the specified address in Montville, and reviewed its rental and access records for the unit rented there by Fautz and paid for by the TEC bank account. (Id. at 21.) Agent Hatcher and DCIS agents by then had commenced physical surveillance of Mr. Fautz, including one occasion when Fautz was inside the storage unit and the agent who witnessed him could see some of its contents. Those included a large industrial tool, stacked boxes, and a box of what looked to be small round metal parts. Agent Hatcher's Affidavit stated as follows: "The unit had no visible home furnishings contrary to Fautz's statement in the customer information record dated May 7, 2003. I believe there is probable cause to believe that Raymond Fautz is using [the specified storage unit] to conduct fraudulent operations on behalf of Transistor and Electronic Components, Inc. (TEC)." (Id. at 21.)*fn7
The physical surveillance of Mr. Fautz described in the Affidavit continued into June, 2007. Agent Hatcher had already determined that the specified apartment in Denville, New Jersey, was rented to Mr. Fautz. (Id. at 8-9.) Also, the vehicle that the agents surveilled him regularly driving was registered in his name. (Id. at 21-22.) On June 12, 2007, during a surveillance session conducted at the apartment premises, Agent Hatcher witnessed that vehicle parked in the covered garage on-site, in the spot designated for the apartment unit rented by Mr. Fautz. (Id. at 22.)
The Affidavit concluded, as to probable cause, as follows:
Based on my experience and information that I have obtained from others experienced in such investigations, I believe there is probable cause that the materials described with this affidavit and in the Attachment ... will be found at the premise[s]. Also maintained at the premises are those items which consist of various pieces of computer hardware, software, digital storage media, records, paper and electronic notes and image files. The aforementioned facts establish probable cause to believe that TEC maintains computer(s) at both its place[s] of business which have been used to commit the Specified Federal Offenses. (Id. at 23.)*fn8
Attachment B to the Application was a continuation of the Affidavit. In it, Agent Hatcher gave the street address and unit number of each of the two premises to be searched, namely the Fautz apartment in Denville and the rented storage unit in Montville. All identifying data for both premises was supplied, including physical description of each street location, and description of the precise interior location and exterior appearance of both the apartment and the storage unit. (Id. at 27-29.)
Attachment A to the Application described the property for which the warrants were sought. (Id. at 2-4.) It is quoted verbatim in the margin.*fn9
Two search warrants were issued by the Magistrate Judge on June 20, 2007, based upon the foregoing documentation. (Dkt. 5-3 at 21-24.) The warrants were identical except as to the premises to be searched. The first specified the apartment in Denville, and the second specified the storage unit in Montville. Attached to each warrant was the identical Attachment A, itemizing the property to be seized. (Id.) See n.9 supra. Each warrant incorporated by reference the attached Affidavit. (Dkt. 5-3 at 21, 23.)
B. PREPARATIONS FOR SEARCH WARRANT EXECUTION
The search warrants were presented to and issued by the Magistrate Judge on Wednesday, June 20, 2007. Each warrant commanded that the search be conducted no later than June 30, 2007, during daytime, defined as between the hours of 6:00 a.m. and 10:00 p.m. (Dkt. 5-3 at 21, 23.) See F.R.Crim.P. 41(e)(2)(A)(i), (ii) (required contents of a warrant include time limit not to exceed 14 days).
DCIS Special Agent Hatcher was the sole lead case agent in charge of
this investigation. (Dkt. 19 at 73; dkt. 31 at 14.)*fn10
He signed the Application and the Affidavit in support of the
warrants, summarized above. (Dkt. 5-2 at 2-29; dkt. 5-3 at 1-19.) The
defense procurement fraud investigation to which he was assigned, as
described in that Affidavit, had been in progress for about two years
at the time those warrants were issued. (Dkt. 19 at 84.) Agent Hatcher
testified that the purpose of the search was for the procurement fraud
scheme that he was investigating. (Id. at 26, 105-106.)
Agent Hatcher began routine preparations for executing on the search warrants shortly before the warrants were issued. Those preparations included assembling pertinent information for briefing the law enforcement personnel who would be conducting and assisting with the search. According to standard practice, an operational plan was developed to be distributed to the law enforcement team. The plan included a summary of what the case was about, who Mr. Fautz was, what locations were to be searched, and what items were to be seized, with attachments including local maps and directions to the search locations and to local hospitals in case anything went wrong. (Id. at 16-20.)
Another of those preparatory steps was to run an NCIC (national criminal records database) search on Mr. Fautz. Agent Hatcher learned of Mr. Fautz's prior felony by running that NCIC search, shortly before the warrants were issued. (Id. at 17-22, 108-109.) That led Agent Hatcher to request a registered firearms history on him from the New Jersey State Police, Firearms Investigative Unit. The firearms search showed that Mr. Fautz had possessed approximately 12 handguns over a period of time starting in about 1979, and that at or about the time of his prior felony conviction in 1997, he had legally transferred away four of them through a licensed dealer, which left approximately eight firearms with unknown status. (Id. at 21-26, 106-110.) The agents did know his age (65) and physical appearance, based on police records and the investigation surveillance. (Id. at 114-116; dkt. 31 at 22-23.)
A further preparatory step taken by Agent Hatcher, working with his fellow DCIS agents in New Jersey, was to go to the self-storage facility where the storage unit was to be searched, and interview the individuals who worked there. One of those individuals told the agents some information describing an incident where Mr. Fautz brandished a .22 caliber handgun at one or more individuals while he was in a vehicle in the vicinity of Newark Airport. (Dkt. 19 at 24-25, 120-123; dkt. 21 at 54-57.)*fn11
The information gathered by Agent Hatcher and his fellow DCIS agents in preparation for the search warrant execution did not allow them to know for sure whether Mr. Fautz had weapons in his possession in his home. (Id. at 26, 110.) However, they did prepare for the search "thinking that there may be guns at his house." (Id. at 122-123.) For that reason, Agent Hatcher arranged for the county sheriff's office to provide Sheriff's Emergency Response Team ("SERT team") support, a term that is synonymous with SWAT team in common parlance [the parties and the Court will use those terms interchangeably]. (Dkt. 21 at 108.) The SERT team was to be used in addition to the other law enforcement agencies who would contribute personnel to the search warrant execution. (Dkt. 19 at 17-18, 111-113; dkt. 21 at 108). Agent Hatcher testified that "the SERT team was used in order to make the entry and secure the premises because we, at that point had no idea what we were going to be encountering." (Dkt. 19 at 18; see also dkt. 21 at 109 (Carifi testimony); id. at 131 (Wagner testimony).) He denied that at any time in preparing for, or in executing, the search warrants, he and his fellow DCIS agents intended to make a gun case against Mr. Fautz. (Dkt. 19 at 116-120, 123, 128, 133; see also dkt. 21 at 59-61.)
The entry and search teams and local law enforcement support assembled to participate in the search warrant execution consisted of local uniformed Denville police, the county SERT team, and federal agents from the DCIS and the Navy Criminal Investigative Service. (Id. at 16-18.) They or their representatives were briefed in advance of the search by Agent Hatcher, as to their respective roles and the appropriate attire and equipment for the process. (Id. at 17-20, 113.) The briefing did include the facts that Mr. Fautz was a convicted felon, and that based on the firearms records there was a suspicion that he may have guns. That topic arose in the context of preparing for officer safety. (Dkt. 19 at 143-144, 168-170; see also dkt. 21 at 7-8, 53-54.)*fn12
C. EVENTS AT APARTMENT PRIOR TO THE ARREST
At approximately 7:00 a.m. on Tuesday, June 26, 2007, Morris County
SERT commander Sergeant Paul Carifi, having attended a briefing at the
DCIS office in Edison, New Jersey, the previous day, briefed his five
SERT team members. (Dkt. 21 at 108-110; dkt. 10-2 at 11.)*fn13
After that, the SERT team met with members of the DCIS team
by Agent Hatcher at a predetermined location near the Fautz apartment.
(Dkt. 21 at 110, 128, 130-131; dkt. 10-2 at 11.) Then they all
proceeded to the apartment location, accompanied by four assisting
officers from the Denville Police Department. (Dkt. 21 at 110,
128-129.) At approximately 8:30 a.m., they were all in their assigned
positions inside and outside the apartment building, which was a large
condo complex. (Dkt. 19 at 26-28; dkt. 21 at 127,
The Fautz apartment was on the third floor, and had one door for ingress and egress. In the hallway immediately outside that apartment, officers arranged themselves so that the SERT team members were all lined up to the left side of the door, while Agent Hatcher stood at the door and knocked and announced that they were federal agents there to execute a search warrant. (Dkt. 19 at 27-29; dkt. 21 at 111-112.) It took a few minutes for Mr. Fautz to arrive at the door. (Dkt. 19 at 29-30.) He had been awakened by the knocking, and came to the door clad in an undershirt and sweatpants. (Dkt. 10-3 at 2.) As soon as he opened the door, the six SERT team members entered, followed immediately by Agent Hatcher within one minute or less, and more of the federal agents behind him by approximately 30 seconds. (Dkt. 19 at 30, 164, 175; dkt. 21 at 112-113, 120.)
The first order of business for the SERT team was to do a protective sweep of the apartment to make sure no other people were present. For that purpose, one or two of the SERT team members detained Mr. Fautz from moving about the apartment while they performed their protective sweep, by stationing themselves with him in the open area of the living room, near the kitchen just to the left of the front door inside the apartment. (Dkt. 19 at 34-35, 147-148; dkt. 21 at 9-10, 112-113, 118-123.) All SERT team members were dressed in black tactical outfits and ballistic helmets. As they made their entry, two or more of them had weapons drawn, including at least one handgun and an "MP5" submachine gun, in "ready gun" position, pointing at about the knee level. At least one of the SERT team members detaining Mr. Fautz at that moment had his handgun drawn; another SERT officer may have also been alongside him at that time with an MP5 drawn. (Dkt. 19 at 30, 94-98, 163-166, 174-175; dkt. 21 at 113-119.)*fn15
The apartment consisted of the kitchen/living room area, a master bedroom, a smaller bedroom furnished as an office, and two bathrooms. (Dkt. 19 at 34-35, 147-148, 173; h'g ex. G-3 (video).) Agent Hatcher testified that it was standard procedure to "consolidate people to one area," during the initial protective sweep in the search warrant process. (See dkt. 19 at 14-16, 125.) He explained the purpose of this step:
Q And why can't they wander around the house?
A For the specific purpose that in standard fraud cases, that we don't want any destruction of documents, we don't want them to lunge at a weapon. Officer safety, their own safety and the people and the officers that are at the facility. (Id. at 38; see also id. at 165-167 (Schaeffer testimony).)
The SERT entry team immediately attended to "clearing the residence to make sure there was no one else inside.... For safety reasons." (Dkt. 21 at 113.) Sergeant Carifi described that the procedure employed by his SERT team was to detain Mr. Fautz in the front area of the apartment, then "clear the residence," meaning making sure there were no other persons present, and then signal to the other agencies that it was safe to enter. (Id. at 112-23.) Key portions of Carifi's direct testimony on that sequence of events may be excerpted as follows:
Q [D]id you at all -- when you went in, did you ever stop and talk or converse in any way with Mr. Fautz, or was that ... left up to Mr. Carro and Mr. Cerullo [SERT team members who were guarding Mr. Fautz immediately upon entry]?
A .... I did not talk to him.... I proceeded to continue clearing the residence.
Q Now, when you say clearing the residence, ... your first job in going in is to make sure there's no one else inside the apartment?
A Yes, to make sure it's safe.
Q Make it safe for everybody, you guys first and then whoever else is going to follow you, is that correct?
Q .... When you're doing this search for other people, you're doing -the SERT team is doing this, is that correct?
Q That's their job, is that correct?
Q [T]hey would have to -- and you correct me if I'm wrong -- that the SERT team does the sweep or search for other people and then secures the apartment?
A Once it's determined that there's no one else in there, we communicate with each other that it's clear and that --
Q And then what happens? Then the other agencies, whoever it was, come in?
A At that time when it was cleared, yes. They would come in, or they may have just followed us in, just into the doorway....
Q I want to just get to the point where there were other agents who were part of this search who were not SERT members?
Q Those would have been federal agents, to your knowledge? A Yes.
Q And I want to stick with the other agents for a minute. The other agents, when they come in, they would not have followed you and the other SERT members to search for other people, am I correct?
Q That was the SERT team's responsibility, is that right? A Correct.
Q After the SERT team performs its function and determines that there are no other people and you secure whatever is in the apartment, then you signal that all is clear?
A I advised them that it was clear.
Q And at that point, is that the point that you recall when the agents then went in to conduct the search?
A Yes. (Dkt. 21 at 119-21.)
Agent Hatcher entered the apartment approximately one minute right behind the SERT team, followed immediately by his fellow agent, DCIS Special Agent James Schaeffer, and other federal agents. Those other agents, including Schaeffer, followed the SERT team to do their own protective sweep, checking for occupants but also checking for anything visible that would be harmful to the search teams. (Dkt. 19 at 14-16, 30-34, 145; dkt. 21 at 10, 65-70.)
Meanwhile, Agent Hatcher went directly to Mr. Fautz and spoke to him. (Dkt. 19 at 31, 34-35.) By then, the SERT team members guarding Mr. Fautz had holstered their weapons and they were standing off to the side. (Id. at 98-99.) Agent Hatcher, who was the first federal agent to approach Mr. Fautz, engaged in a brief conversation with Mr. Fautz at that moment. Hatcher identified himself and advised Mr. Fautz that they had a search warrant for his apartment and his storage unit. (Id. at 34-35.) Hatcher also at that time informed Mr. Fautz a little bit about the case, stating that the agents knew he was selling parts to DoD, and they believed the parts were counterfeit. He added words to the effect of: "we'd like your cooperation, we'd like to talk to you about this." (Id. at 35, 138-140.) Mr. Fautz thereupon asked for an attorney, or for his attorney. (Id. at 35.)
Agent Hatcher's testimony on this point is quoted in the margin.*fn16
During that initial encounter with Mr. Fautz, Agent Hatcher also had with him, visible in his open investigation folder, the printout of the firearm report indicating all the guns that had been registered to Mr. Fautz. While he was making his first few comments to Mr. Fautz, Hatcher said words to the effect of "we know you like handguns; if you have any here, please let us know." Mr. Fautz answered that question by saying no, there was nothing; there wouldn't be any guns in there. (Dkt. 19 at 44, 134-135.) This part of the conversation occurred before Mr. Fautz invoked his right to counsel, during that initial exchange. (Id. at 43-44, 101-102, 111.) Agent Hatcher testified that he asked that question based upon his training and experience, "especially when you know or you get some information beforehand, the person has had weapons or has possessed weapons in the past. So, it's a normal, rational question that would be asked as soon as you make contact with the subject." (Dkt. 19 at 43.) He said that his purpose in asking that question, during the protective sweep of the apartment, was purely for officer safety, not to elicit any incriminating answers from Mr. Fautz. (Id. at 40-41, 105, 125, 134-140.)
Agent Hatcher testified at length as to his reasons for asking Mr. Fautz, during the initial encounter, about the presence of any guns in the apartment. His testimony on that topic was as follows:
Q What was your purpose for asking about guns, period?
A Our main concern is officer safety, the people in the home aren't hurt. During the search we don't want agents running over any weapons. The main reason that I asked Mr. Fautz [was] because I knew -- I had a suspicion that there was going to be a gun somewhere in the house that was either loaded, unloaded, whatever it may be, that if someone stumbled on it, reached into a drawer, reached into the bottom of a closet, it could go off, it could hurt somebody, whatever the situation may be. ....
During the normal course of a search they, ... because you conduct your search, it's counter clock[wise] or clockwise and if you come across a gun, somebody stick their hand into places where it could possibly go off, depending on what type of gun it is.
The other reason that we obviously ask those questions, is to make sure that if Ray is allowed to move around or, you know, if there's a cooperative agreement, you know, that Ray has been cooperative, the defendant is being cooperative we usually do let him walk around with another agent. You know, sometimes they cooperate, they point out documents. You know, it's just sometimes the way it's done.
And so, my concern was that if that situation were to happen, him being allowed to walk around and have accessibility to stuff around the house, it may be an issue.... Doesn't grab a weapon. (Dkt. 19 at 40-41.)
Agent Hatcher testified, "[t]he questions stopped just after Mr. Fautz requested his attorney." (Dkt. 19 at 42.) "At that point, based on my training and experience, once an individual requests an attorney, all questioning stops. Mr. Fautz kind of walked around the common area a little bit, obviously agitated, upset, you know. And, so I said there was no, you know, we're not going to talk to you now. He didn't request an attorney at that point, and that was kind of it and so, I kind of let all the -- the team leader who was on my search warrant one step below me, know he had kind of lawyered up." (Id. at 35-36.) Meanwhile, the federal agents were still performing their initial security sweep. (Id. at 37.) Mr. Faust was not under arrest at that time, but he was being watched by Agent Hatcher and one or two of the SERT officers, to prevent him from moving freely around the apartment that was to be searched. (Id. at 37-39, 94-95, 125.)
According to Agent Hatcher, if Mr. Fautz had wanted to leave at that point, he would have been free to go. (Dkt. 19 at 37, 101-105.) On the other hand, Mr. Fautz did not at any time prior to the arrest ask whether he could leave, and there is no evidence that any of the law enforcement personnel told him that he could do so. (See, e.g., id. at 105, 128.) Sergeant Carifi, commander of the SERT team, did testify that until a gun was discovered, Mr. Fautz was not under arrest or handcuffed. (Dkt. 21 at 125.) We find that Mr. Fautz was not under formal arrest or handcuffed at that time, although he was being detained by the SERT team as the agents made their initial security sweep of the apartment.
It was just moments later, however (probably seconds later), when Agent Schaeffer brought a holster to Agent Hatcher. (Dkt. 19 at 39, 100-104.) In fact, during his security sweep Schaeffer had come across one or more gun holsters in plain view in the closet of the room furnished as an office, and took a holster to Agent Hatcher there in the living room. (Dkt. 19 at 145-148, 171, 174, 176-178.) The following testimony of Agent Hatcher describes what happened next:
A .... Schaeffer brought me a holster and so I asked Ray [Fautz] at this point, where are the guns?
A Because based on training and experience, if there's holsters, there's most likely going to be a gun somewhere. Once I got the holster from [Agent Schaeffer] and I asked Ray [Fautz] that, Mr. Fautz pointed and said that there was a gun in the black garment bag in his closet. ....
A There was a gun found in the black garment bag in the closet. Q And was that the location that Mr. Fautz described to you? A Yes.
THE COURT: What closet -- what room is this closet in? THE WITNESS: It's his bedroom closet.
Q What happened after this gun was found with respect to Mr. Fautz? A Agents said gun, found a gun, and ... I arrested Mr. Fautz. Q Why did you arrest him?
A For being a felon in possession of a handgun. ....
THE COURT: What did you say when you turned to him?
THE WITNESS: I said, Mr. Fautz, you're under arrest for being a felon in possession of a handgun, please put your hands behind your back. He put them behind his back, I put handcuffs on.... ....
Q [D]id you give Miranda rights to Mr. Fautz at this time?
Q Did you interrogate him?
A I did not. (Dkt. 19 at 39-42; see also id. at 125-127; dkt. 21 at 11-12; dkt. 31 at 24-25.)*fn17
Agent Hatcher testified that at the moment when he was holding the one holster in his hand and asking Mr. Fautz where were the guns, Hatcher did have reason to believe that there were in fact guns in the apartment. (Dkt. 19 at 126.) He did testify, however, that even at that moment, "[i]f he [Mr. Fautz] wanted to get up and walk out, he could." (Id.) Nor, according to Agent Hatcher, did Mr. Fautz have any obligation to answer his renewed question about the presence of guns when the holsters were found. (Id. at 126-128.) On the other hand, Sergeant Carifi, the SERT team commander, testified that while the SERT team was detaining Mr. Fautz during the security sweep, Mr. Fautz was not free to leave the apartment. (Dkt. 21 at 125.) That period would include the moment after the holster was found, when Agent Hatcher showed Mr. Fautz a holster and asked him, "Where are the guns?" We credit the testimony of Sergeant Carifi that although Mr. Fautz was not under arrest at that precise moment, he was still being detained by the SERT officers who were guarding him. We further find that Mr. Fautz could have reasonably believed in the circumstances, that from the time that the SERT team entered the apartment and temporarily detained him during their security sweep, he was not free to leave the apartment, although he was not under formal arrest until Agent Hatcher announced that he was under arrest and placed him in handcuffs.
Mr. Fautz was not provided with Miranda warnings at any time, during his initial detention or after his arrest through the time that he was booked after transport to the federal courthouse in Trenton. (Dkt. 19 at 56, 59-60, 123.) That was the result of a deliberate decision of the case agent, Special Agent Hatcher, not to administer Miranda warnings. He stated that consistent with his training and experience, that decision was appropriate because Mr. Fautz had previously asked for an attorney, and Hatcher intended that neither he nor his fellow agents would question the arrestee on any matters relating to the potential charges against him. (Id. at 56, 123-24, 129, 132-33; dkt. 31 at 11-17, 24-28, 41-47.) Agent Schaeffer also stated that according to their training, if agents are not looking to question those who are under arrest, the agents do not have to read them their Miranda rights. (Dkt. 19 at 161-162.) Agent Hatcher denied that his decision not to administer Miranda warnings, at or after the time of arrest, was because he wanted the arrestee to be verbal and talk. (See, e.g., dkt. 19 at 129, 131-132.) We find that uncontroverted testimony to be credible in light of all the facts in evidence.
We find that the police entry into the apartment began at approximately 8:35 a.m., and the arrest occurred at approximately 8:40 a.m. This is based upon the record of events leading up to and following the actual arrest. The post-arrest events are described below. The timing analysis is set forth here in the margin.*fn18
D. EVENTS AT BOTH PREMISES SUBSEQUENT TO THE ARREST
Agent Hatcher had the opportunity to observe Mr. Fautz frequently but not continuously while in the apartment, both before and after arresting him. As soon as the security sweep was completed, during which Mr. Fautz had been arrested, the federal agents began setting up and conducting the warrant search in the apartment, and Agent Hatcher called the Assistant United States Attorney in Trenton to report the arrest. (Dkt. 19 at 36-37, 45-50; dkt. 31 at 19-21, 23-24.) The SERT officers were the ones actually guarding Mr. Fautz during the entire period in the apartment, until Mr. Fautz was escorted from the apartment in handcuffs for transport by the federal agents. (Dkt. 31 at 21.)
The demeanor of Mr. Fautz, as observed by Agent Hatcher in the apartment, was that he was upset and agitated even before the gun was found and he was arrested. (Dkt. 19 at 35-36.) After Mr. Fautz was arrested and handcuffed, according to Hatcher, he remained upset and agitated. (Id. at 89-90, 92; dkt. 31 at 27-28.) "He was constantly talking, constantly, ... he must have said my name about 50 times in the next half an hour, at least.... 'Zach, Zach, Zach, Zach. Take these off, stop, Zach.... Would you do this to your father, Zach, what would you do? Why would you do this? Come on, let me go. Handcuff me in front, my shoulder hurts...' ... constantly chattering throughout the time we were there." (Dkt. 19 at 42.) No physical contact other than handcuffs was used by law enforcement officers on Mr. Fautz at any time before, during or after the arrest. (Id. at 93.)*fn19
Hatcher made the decision to summon an EMT to check Mr. Fautz before he was to be transported to the U.S. Marshal in Trenton for booking, a ride of about an hour. (Dkt. 19 at 44-45; dkt. 31 at 21.) Agent Hatcher saw no medical problem that he could observe, but he did see pill bottles and some other things that made him conclude that he would not feel comfortable having Mr. Fautz leave the house without being seen by an EMT. Hatcher did this out of concern for potential liability. (Dkt. 19 at 44-45, 55, 86-87; dkt. 31 at 21-22, 29-30.)*fn20
Denville ambulance officer Joseph Giordano testified about the EMT session with Mr. Fautz. The timing of that session is described supra n.18. It was after the arrest and before Mr. Fautz was removed from the apartment for transport to Trenton. Officer Giordano, testifying from memory and from the contemporary ambulance report, confirmed the report summary as follows:
Mr. Fautz was the subject of an arrest by federal agents. Prior to the agents transporting their prisoner to Trenton, the agents requested Denville FAS to check on the condition of the patient. The patient showed signs of anxiety but no signs/symptoms of any medical issues. (Dkt. 10-2 at 16-17 [same as h'g ex. D-3]; dkt. 21 at 136-147.) No medical treatment was administered to Mr. Fautz by the ambulance squad, nor were they authorized to treat a patient. (Dkt. 21 at 135-137.) The EMT officers did offer Mr. Fautz the opportunity to go to the hospital, and when he refused he was asked to sign the refusal line on the report, for the protection of the ambulance service. Mr. Fautz signed it with a squiggle while still handcuffed behind his back. (Dkt. 21 at 136, 147-149; dkt. 10-2 at 17.)
While these post-arrest events involving Mr. Fautz were happening in the apartment, the members of the search team continued moving their equipment in and commenced their methodical warrant search. (Dkt. 19 at 36-37, 45-47, 99; dkt. 31 at 49-51, 55-56.) The equipment included a digital micro-cassette video camera, a still photo camera, labels, boxes and inventory forms. (Dkt. 19 at 36-37, 61; dkt. 31 at 51; see h'g ex. G-3 (video); h'g ex. G-4, G-5 (photos); dkt. 5-4 at 2-17 (inventory forms).) The agents put labels in the various rooms, thereby identifying each room for purposes of photographing the contents and inventorying items seized. (Dkt. 19 at 54.) For example, Mr. Fautz's bedroom was Room B, the kitchen was Room C, and the room furnished with office equipment was Room G. (See h'g ex. G-3; dkt. 5-4 at 4-17.) Agent Hatcher said that at this warrant search and every other one he ever ...