The opinion of the court was delivered by: Conti, District Judge.
Defendant Robert Harris ("Harris" or "defendant") was indicted on September 26, 2007, and charged with the following six offenses: (1) count one, possession with intent to distribute and distribute less than 50 kilograms of marijuana, on or about February 9, 2007, in violation of 21 U.S.C. §§ 841 (a)(1) and 841 (b)(1)(D); (2) count two, possession of a firearm by a convicted felon on or about July 16, 2007, in violation of 18 U.S.C. § 922(g)(1); (3) count three, possession with intent to distribute and distribute less than 50 kilograms of marijuana, on or about August 13, 2007, in violation of 21 U.S.C. §§ 841 (a)(1) and 841 (b)(1)(D); (4) count four, possession of a firearm in furtherance of a drug trafficking crime on or about August 13, 2007, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (5) count five, possession of a firearm by a convicted felon on or about August 13, 2007, in violation of 18 U.S.C. § 922(g)(1); and (6) count six, possession of a firearm with an obliterated serial number on or about August 13, 2007, in violation of 18 U.S.C. § 922(k).
On December 28, 2007, defendant filed seven pretrial motions with this court, which were a motion to suppress evidence, a motion to sever counts for trial, a motion to exclude evidence of electronic surveillance, a motion in limine, a motion for discovery, a motion for notice of uncharged bad acts to be offered at trial, and a demand for identification of evidence arguably subject to suppression. On January 30, 2008, the government filed an omnibus response to these motions. A hearing on the defendant's pretrial motions was held on April 17, 2008, and concluded on May 9, 2008.
At the hearing, the court heard testimony from defendant, a confidential informant,*fn1 and Special Agent Maurice Ferentino ("Agent Ferentino"). After hearing testimony and argument from counsel for defendant and the government, the court denied in part defendant's motion to suppress evidence to the extent that he argued that evidence should be suppressed because of illegalities in the search warrant, but reserved ruling on the motion to suppress certain statements made by defendant at the Monroeville police station, which is the subject of this opinion. The court also denied in part defendant's motion for severance, holding that counts one and two of the indictment would be tried together, and reserved ruling on defendant's motion to sever counts one and two in the indictment from counts three through six, which is also the subject of this opinion. For the reasons stated on the record, defendant's other pretrial motions were denied.
After the hearing, defendant and the government submitted proposed findings of fact and conclusions of law regarding whether the statements made by defendant at the Monroeville police station should be suppressed. Defendant argues that the statements were made during an interrogation of defendant that was a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The government disagrees and argues that the statements should not be suppressed because (1) defendant was not in custody on the day in question; (2)Miranda warnings were not constitutionally required for that reason; and (3) defendant freely and voluntarily gave the admissions, rendering them fully admissible at a trial of the charges in the indictment.
Defendant filed a supplemental brief regarding whether the charges in the indictment should be severed. The government, however, declined to file an additional brief and elected to rest on the arguments set forth in its initial brief and by its counsel at the hearing. Defendant argues that the counts in the indictment are improperly joined as the charges arise from three separate events on different dates and that defendant will be prejudiced if the counts are tried together. The government maintains that joinder of the counts is proper and that the any risk of "evidentiary spillover" between the charged counts can be obviated through limiting instructions to the jury.
On this 12th day of August, 2008, the court makes the following findings of fact and conclusions of law with respect to the remaining issues raised in defendant's motion to suppress evidence and motion for severance:
1. In December 2006, Agent Ferentino of the Bureau of Alcohol, Tobacco and Firearms ("ATF") recruited a confidential informant to cooperate in a criminal investigation of defendant. Evid. Hr'g Tr. 4/17/08 at 58-59. At the direction of Agent Ferentino, the informant arranged two meetings with defendant at defendant's residence located on Elm Drive in Verona, Pennsylvania. At the meetings, the informant engaged defendant in two illegal transactions. Id. at 59-61. During the first meeting on February 9, 2007, the confidential informant purchased a pound of marijuana from defendant. Id. at 60. During the second meeting, on July 16, 2007, the informant purchased an assault rifle from defendant. Id. These transactions resulted in the charges against defendant at counts one and two of the indictment.
2. On August 13, 2007, a warrant was issued by a United States Magistrate Judge in the Western District of Pennsylvania to search the premises of defendant's Elm Drive residence. Id. at 66-67; Evid. Hr'g Tr. 5/9/08 at 5. The affidavit in support of the warrant to search defendant's residence relied in part on the evidence recovered from the informant during the meetings on February 9, 2007 and July 16, 2007. (See Docket No. 34-2).
3. On August 13, 2007, prior to executing the warrant, defendant was approached at his place of employment, Roomful Express on William Penn Highway in Monroeville, Pennsylvania, by Agent Ferentino, and Agents Brian Fattori and Kevin Kaufman of the ATF. Evid. Hr'g Tr. 4/17/08 at 19, 43-44. Agent Ferentino testified that his purpose in approaching defendant at his work was to enlist his cooperation with their investigation. Evid. Hr'g Tr. 5/9/08 at 26. First, the agents wanted defendant to unlock the door to his residence to permit the agents to enter the residence. Id. at 25. Agent Ferentino believed that if the agents breached the door during the day and in plain view of defendant's neighbors, defendant's willingness to cooperate with the ATF investigation would decrease. Id. at 24-25. Second, the agents sought defendant's cooperation in the overall investigation of other individuals. Specifically, the agents wanted defendant to provide information about his source of supply of drugs and knowledge about criminal activity. Id. at 25.
4. Agent Ferentino encountered defendant at his workplace in the loading dock area at Roomful Express, Monroeville, Pennsylvania. Evid. Hr'g Tr. 4/17/08 at 19. He showed defendant his badge, identified himself as an ATF agent and told defendant that he needed to talk to him. Id. at 19, 69. Defendant was asked to accompany the agents outside and he acquiesced. Id. at 22. In the parking lot of Roomful Express, one of the agents conducted a pat-down search of defendant and removed a cell phone, medicine and a box cutter from his person. Id. at 22-23. The agents returned the medicine to defendant, but at that time did not return the cell phone or the box cutter. Id. at 23.
5. Agent Ferentino informed defendant that the agents had a warrant authorizing the search of defendant's residence, and showed defendant a copy of the face of the warrant. Id. at 68-70; Evid. Hr'g Tr. 5/9/08 at 24. Agent Ferentino testified that he made it clear to defendant that defendant was not under arrest, the warrant authorized only a search of his residence and he was under no obligation to speak with the agents. Evid. Hr'g Tr. 4/17/08 at 68-71. Agent Ferentino told defendant that a team of ATF agents was located at his residence awaiting instruction on when to execute the search warrant. Id. at 70. A discussion ensued between Agent Ferentino and defendant regarding the execution of the warrant. Defendant testified that he was given two options, either: (1) to go to his residence with the agents to open his door so that the door would not be knocked down by the agents; or (2) to go to the police station. Id. at 23. Agent Ferentino similarly testified that options were given to defendant, but stated that those options were: (1) to drive himself to his residence and unlock his door to let the agents execute the warrant; or (2) to return to work and the warrant would be executed by the agents, which would require them to breach the door to the residence. Id. at 71.
6. Defendant chose to accompany the agents to his residence in order to let the agents into his residence to initiate the search warrant. Id. at 71; Evid. Hr'g Tr. 5/9/08 at 26. Defendant did not, however, agree at this point to cooperate with the agents by providing them with any additional information to support the general investigation. Evid. Hr'g Tr. 5/9/08 at 25-26. The agents agreed to drive defendant to his residence and to permit him to unlock the door. Id.; Evid. Hr'g Tr. 4/17/08 at 71. Defendant was dropped off at work that day and did not have a car to drive himself. Id. at 71.
7. There was also some discussion in the parking lot of Roomful Express between defendant and Agent Ferentino regarding who would notify defendant's supervisor that he was leaving work. Defendant testified that he asked the agents for permission to go back inside and tell his supervisor that he was leaving and was told by the agents that he could not. Id. at 37. Agent Ferentino denied that defendant asked him to permit defendant to tell the supervisor that he was leaving. Evid. Hr'g Tr. 5/9/08 at 13. Agent Ferentino testified that defendant expressed some concern regarding his supervisor and leaving work with the agents. Id. The agents advised defendant not to worry about his supervisor because Agent Fattori would explain to the supervisor that defendant was a witness in a case and was leaving with the agents. Id. at 13, 31. Agent Ferentino further testified that not permitting an individual to speak with his supervisor in this type of situation is common practice in the Pittsburgh field office and a practice that he has employed in his twelve years of experience in law enforcement. Id. at 31. Defendant testified that he did not feel free to leave during the discussion between himself and the agents in the parking lot of Roomful Express because he was not permitted to return inside and speak with his supervisor. Evid. Hr'g Tr. 4/17/08 at 37.
8. In order to drive defendant to his residence, the agents placed defendant in the rear passenger side seat of the agents' vehicle. Id. at 45, 72. Defendant was not handcuffed or placed in shackles. Id. at 46, 72. Agent Fattori was driving the vehicle, Agent Ferentino sat in the front passenger side seat and Agent Kaufman sat in the back seat with defendant. Id. at 72; Evid. Hr'g Tr. 5/9/08 at 4. The vehicle exited the parking lot, was driven onto Route 22 and was almost immediately involved in an accident with another vehicle. Evid. Hr'g Tr. 4/17/08 at 72. After the accident, the vehicle was driven to the side of the road and Agent Ferentino determined that no passenger was injured. Id. at 73. The four passengers exited the vehicle and all except the driver, Agent Fattori, stood on the side of the car nearest to the guardrail. Id. at 73; Evid. Hr'g Tr. 5/9/08 at 3.
9. Agent Ferentino testified that five minutes after the accident, he called his supervisor, Special Agent Louis Weiers, and told him to "make entry into the residence." Evid. Hr'g Tr. 4/17/08 at 76. This conversation was made outside the presence of defendant. Id. at 76. Agent Ferentino testified that sometime after the accident he engaged in another conversation with defendant in which he told defendant that defendant could return to work and someone would drive him back to work. Id. at 73-74; Evid. Hr'g Tr. 5/9/08 at 19, 60. Defendant declined to return to work and told the agents that he still wanted to accompany the agents to his residence. Evid. Hr'g Tr. 4/17/08 at 74; Evid. Hr'g Tr. 5/9/08 at 20. Defendant was not told by the agents at this point that the search of his residence had been authorized.
10. It was determined by the agents that the vehicle was badly damaged and could not be driven. Evid. Hr'g Tr. 5/9/08 at 4-5. The agents contacted the second team of agents, who were at defendant's residence, to pick them up from the accident scene and drive them to the residence. Evid. Hr'g Tr. 4/17/08 at 74-75. The second team of agents was from out of the area and could not locate the accident scene. Id. at 75. By reason of this difficulty, Agent Ferentino thought that it would be easier for the second team of agents to pick them up from the Monroeville police station rather than at the accident scene. Id. Local police responded to the scene of the accident and one of the responding police officers agreed to drive Agent Ferentino and defendant to the Monroeville police station. Id.
11. A uniformed police officer drove Agent Ferentino and defendant to the Monroeville police station in a Monroeville police vehicle. Id. at 26, 75. Agents Fattori and Kaufman stayed behind with the disabled vehicle in order to remove sensitive police ...