The opinion of the court was delivered by: Chesler, District Judge
This matter comes before the Court on the first motion to suppress (Docket Entry No. 108) by Defendant Michael F. Durante. In the Opinion and Order of December 19, 2011, this Court Ordered that an evidentiary hearing be held on one aspect (later amended to two aspects) of the motion: 1) suppression of evidence seized from the safe at Defendant's home on March 24, 2011; and 2) suppression of all post-arrest statements allegedly made by Defendant on March 24, 2011. For the reasons set forth below, that part of the motion on which decision had been reserved will be denied.
An evidentiary hearing on the motion was held on January 9, 2012. The Government offered testimony of two witnesses, Michael O'Neill and Gino Izzo. Defendant declined to present any witnesses. This Court Ordered supplementary briefing. Defendant has since moved to strike the hearing testimony of Gino Izzo.
I. Suppression of evidence obtained from the safe
At issue is suppression of evidence seized from a warrantless search of a locked safe at Defendant's home on March 24, 2011. After this Court held the evidentiary hearing, Defendant challenged the legality of the search that resulted in discovery of the safe. In short, the evidence presented at the hearing showed that the safe was discovered during a second protective sweep of the basement of the home. Defendant correctly cites the law regarding protective sweeps: "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325, 337 (1990). Defendant argues that the second protective sweep was not permissible under this principle.
In response, the Government objects to the characterization of the search of the basement as a protective sweep. Rather, the Government appears to contend that the search of the basement was permissible because it was done to locate the Defendant in the house, in execution of the arrest warrant. This is not supported by the evidence. Agent O'Neill testified that he searched the basement in order to conduct a protective sweep. (1/9/12 Hrg. Tr. 52:10-13.) Agent O'Neill also testified that, at the time of the basement search, the officers had been in the home for ten to twenty minutes. (Id. at 49:7.) Agent O'Neill also testified that, immediately upon entering the home, some agents went upstairs. (Id. at 43:1.) These circumstances are inconsistent with the position that O'Neill looked in the basement to locate Defendant to arrest him. There is nothing in O'Neill's testimony to suggest that O'Neill searched the basement in an effort to locate Defendant to arrest him. The evidence presented does not support the Government's claim that the safe was discovered while searching the basement for Defendant.
The Government then argues, however, that, even if the search of the basement that discovered the safe was impermissible, suppression is not required because of the doctrine of inevitable discovery: "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . the evidence should be received." Nix v. Williams, 467 U.S. 431, 444 (1984). The Government contends that, because Mrs. Durante consented to the search of the residence, the safe would have been legally discovered during that lawful search.
Defendant, in reply, argues that the doctrine of inevitable discovery does not apply because Mrs. Durante gave her consent to search after the discovery of the safe. Defendant here relies on a false proposition -- that Third Circuit law requires that the inevitable discovery analysis be based on historical facts as they existed at the time of the illegal search.*fn1 There are two problems with Defendant's position. First, Defendant does not cite to any authority which actually supports the proposition. Defendant cites the Third Circuit's decision in United States v. De Reyes, 149 F.3d 192, 195 (3d Cir. 1998), which goes contra to Defendant's proposition: "It is the government's burden to show that the evidence at issue would have been acquired through lawful means, a burden that can be met if the government establishes that the police, following routine procedures, would inevitably have uncovered the evidence." This makes clear that the inquiry does rest on prediction about what might have happened through following routine procedures, which is impossible if only historical facts are considered. Second, Defendant's proposition, if true, would largely eliminate the doctrine of inevitable discovery, since it would bar consideration of what might have happened if routine procedures had been followed.
Defendant here does not argue that, when the officers obtained consent to search the residence from Mrs. Durante and then searched the residence, it did not follow a routine procedure. The Government has therefore persuaded this Court that the police, following routine procedures, would inevitably have discovered the evidence. The routine procedures are: 1) obtaining Mrs. Durante's consent to search the house; and 2) searching the house pursuant to this consent. Although the safe was discovered during what may have been an unlawful search, because the safe would have ultimately been discovered through lawful means, the Fourth Amendment does not require that the evidence of the safe be suppressed.
Defendant next argues that the Government has not sustained its burden of proof that Dr. Durante's consent to search the safe was voluntary. Defendant contends that the fact that the officers used a threat of obtaining a search warrant to convince Dr. Durante to consent renders that consent involuntary.
"[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). At the hearing, Agent O'Neill testified as follows:
Then I told him that ultimately he had the absolute right to refuse consent to search the safe. And I went on to tell him that if he did refuse it, that we did have the ability to apply for a search warrant and then if we did get a search warrant, that the contents of the safe would be ultimately revealed.
(1/9/12 Hrg. Tr. 29:5-10.) It is difficult to view this as coercion, since the statements appear to be accurate, inform Defendant of his right to refuse consent, and reflect the fact that there was uncertainty about whether the police would be able to get a search warrant.
In support, Defendant cites United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994), but this case does not support Defendant's position, as that Court held: "Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but when the expressed intention to obtain a warrant is genuine . . . and not merely a pretext to induce submission, it does not vitiate consent." The Seventh Circuit thus inquired into whether the statements reflected genuine intent or were a pretext. In the instant case, the testimony supports the view that the statements were entirely genuine: the Government did have the ability to apply for a search warrant and, if it obtained such a warrant, the contents of the safe would be revealed.*fn2 ...