was speaking when the officers entered the house and that they had been on the phone approximately five to ten minutes prior to the officers' entry. Brady was able to specifically recall that particular phone conversation due to its rather abrupt ending. He stated that defendant said, "Michael, come over, three men just busted in my house." Thus, like Frederick Teti, Sr., defendant could not have been the moving figure, as he was already on the telephone when the officers arrived. The Government contends, however, that Lt. Wilson had a "reasonable subjective good faith belief" that someone was moving towards the dining room. We reject this contention. In light of the uncontroverted objective facts, we do not believe that Lt. Wilson's statement that he saw a figure move towards the dining room is credible.
Accordingly, the Court holds that the entry in this case was in violation of 18 U.S.C. § 3109. Since it is settled that evidence seized during a search in a dwelling entered in violation of § 3109 is inadmissible, Miller v. United States, 357 U.S. 301, 305, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958); United States v. Bustamante-Gamez, 488 F.2d 4, 7 n.3 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S. Ct. 1993, 40 L. Ed. 2d 559 (1974); United States v. Pratter, 465 F.2d 227, 230 (7th Cir. 1972), defendant's motion to suppress the physical evidence will be granted.
3. Statement made to Treasury Agents.
Defendant contends that the statement he made to Agents Minichino and Piccirilli, on September 5, 1975, should be suppressed for two different, yet overlapping, reasons. Defendant's first contention is that the agents failed to give adequate warnings, as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Relying on Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), defendant also contends that the statement must be suppressed as a fruit of the illegal entry. Since the facts do not support either of defendant's contentions, the Court will deny the motion to suppress the statement.
With respect to the first issue, defendant relies on his testimony at the suppression hearing, which is contrary to the testimony given by the agents. Defendant quite rightly points out, however, that it is for the Court to decide questions of credibility and resolve conflicts in the testimony. Accordingly, the Court finds that the agents advised defendant of his rights at the inception of the interview, in accordance with Miranda; that the statement which defendant made after he received the Miranda warnings was voluntarily given (see 18 U.S.C. § 3501); and that the agents properly terminated the interview as soon as defendant indicated he did not wish to speak further unless his attorney was present.
The issue presented by defendant's second contention is whether the statement was obtained by exploitation of the illegal entry. Although we have already found, for Fifth Amendment purposes, that the statement was voluntarily given, it does not necessarily follow that defendant's Fourth Amendment rights were not violated. In other words, "the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." Brown v. Illinois, 422 U.S. 590, 603, 95 S. Ct. 2254, 2261, 45 L. Ed. 2d 416 (1975) (original emphasis). Rather, whether a confession is the product of a free will under Wong Sun must be determined on a case-by-case basis. Id. at 603. Fortunately, the Brown court set forth four factors that are most helpful in making a determination of this kind. They are: (1) the voluntariness of the statement; (2) the temporal proximity of the illegal action and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. Id. at 603-604.
The first factor need not detain us as we have already found that the statement was given voluntarily. Concerning the second and third factors, the statement was separated from the illegal entry by more than two months and it was made in defendant's own home, a setting which could hardly be called coercive. Finally, the officers' misconduct does not appear to be purposeful in the sense that they illegally entered the house in the hope that incriminating evidence might be found. They had already obtained a warrant to search the premises. Rather, the illegal entry appears to have resulted from over-zealous police work. Accordingly, we hold that the connection between the illegal entry and the statement had "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939). See Wong Sun, supra, 371 U.S. at 491.
An appropriate Order will be entered.
AND NOW, TO WIT, this 25th day of August, 1976, IT IS ORDERED that the defendant's motion to suppress physical evidence is granted.
IT IS FURTHER ORDERED that the motion to suppress a statement is denied.
LOUIS C. BECHTLE, J.