The opinion of the court was delivered by: Judge Munley
Before the court are defendant's evidentiary motions (Docs. 45-48, 52-62), motion to suppress statements (Doc. 57) and motion to suppress statements obtained as a result of consensual body wire recording within the defendant's residence without prior court approval. (Doc. 80). Having been fully briefed and a hearing held on defendant's motion to suppress his statements, the matters are ripe for disposition.
On September 24, 2007, the United States filed a criminal complaint (Doc. 1) against the defendant, charging him with possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). That same day, Magistrate Judge Thomas M. Blewitt approved an arrest warrant and search warrant for the defendant's apartment, which agents executed on September 25, 2007. (See Docs. 2-3). On October 2, 2007, a grand jury returned an indictment (Doc. 13) against the defendant, charging him with four counts of drug-related offenses, including possession and distribution of cocaine base and marijuana. The grand jury then returned an eight-count superseding indictment (Doc. 33) on March 18, 2007. That indictment charged the defendant with conspiracy to possess and distribute more than 50 grams of cocaine base, cocaine and marijuana, possession with intent to deliver cocaine base, use of a building for drug distribution operations, possession of a firearm in furtherance of a drug-trafficking crime and possession of a firearm while being an unlawful user of controlled substances.
Defendant has filed a number of motions related to his case. A large portion of those motions address discovery issues. Three of the motions, however, address whether certain evidence collected by investigators in the case should be suppressed. These motions seek to suppress statements defendant made to police at the time of his arrest, statements collected by the police through consensual use of a body wire recording device, and physical evidence recovered in a search of defendant's residence. The court conducted a hearing to address defendant's motion to suppress his statements on September 3, 2008. The court will relate the facts important for the disposition of those motions at the appropriate point in this decision. At the conclusion of that hearing, the court ordered the parties to file briefs addressing the testimony. The parties filed those briefs, along with briefs addressing defendants motion to suppress tape-recorded statements, bringing the case to its present posture.
The court will address each of the defendant's motions in turn.
A. Motion to Suppress Defendant's Statements
Defendant seeks suppression of the statements he made to law enforcement officers (Doc. 57). He argues that his statements were not made after a knowing and voluntary waiver of his Miranda rights. He also contends that the court should suppress defendant's statements even if the wavier was voluntary, because law enforcement agents engaged in coercive behavior that made his statements not truly voluntary.
The Supreme Court has held that the Self-Incrimination Clause of the Fifth Amendment "[bars] the introduction in federal cases of involuntary confessions made in response to custodial interrogation." Withrow v. Williams, 507 U.S. 680, 688 (1993). Courts have found that "a statement is involuntary when the suspect's'will was overborne in such a way as to render his confession the product of coercion.'" Choi Chi Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002). To determine whether a confession was voluntary, "courts look to the totality of the circumstances." Withrow, 507 U.S. at 693. Such "potential circumstances include not only the crucial elements of police coercion," but also "the length of interrogation; its continuity; the defendant's maturity, education, physical condition, and mental health, [and]... the failure of the police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation." Id. at 693-94 (internal citations omitted). Defendant points to several circumstances which he argues demonstrate that his statements were the product of coercion.
On September 3, 2008, the court held a hearing to address defendant's motion to suppress his statement. The court will describe the evidence collected in that hearing in some detail in order to describe the totality of the circumstances and determine whether defendant's statement was voluntary. Task Force Officer Timothy Harding testified at the hearing. (Transcript of Hearing held on September 3, 2008 (hereinafter "T") (Doc. 77) at 14). A police officer in Scranton, Pennsylvania, Harding has worked for the Federal Bureau of Investigation's Safe Streets Task Force since March 2007. (Id. at 15). In that position, he is assigned to investigate "violent crimes, gang-related crimes and drug crimes." (Id.). Harding has extensive training in drug investigation and has participated in "hundreds" of such cases. (Id. at 16). He has interviewed "countless" drug suspects in the course of those investigations. (Id.).
Harding participated in the investigation of Defendant Frank Caple. (Id.). He applied for the search and arrest warrants signed by Magistrate Judge Thomas M. Blewitt on September 24, 2007. (Id. at 17). The warrant gave permission to search the Defendant's residence and curtilage, located in Scranton, Pennsylvania. (Id. at 17). Harding and other officers executed this search warrant on September 25, 2007 at 6:13 a.m. (Id. at 18, 21). They arrived at defendant's residence, knocked loudly on the door, shouting that they were police and had a search warrant. (Id. at 23). When no one answered, officers forced their way into the residence. (Id.).
Officers encountered two people in the apartment. (Id. at 24). Harding and another officer went into the home and entered a bedroom, which at first appeared unoccupied. (Id. at 24). The two agents then performed a quick search to "clear" the area. (Id.). When they opened a closet door, the agents discovered eighteen-year-old Jennifer Mezick hiding inside. (Id. at 24-25). They ordered Mezick out of the closet and onto the ground. (Id. at 25). Mezick was unclothed, and Harding and his fellow agent called in a female officer, who found clothing for her. (Id.). Agents then handcuffed and detained Mezick. (Id.).
Harding left the bedroom and went to the living room in the front of the house. (Id.). There, he encountered two other officers, Special Agent James Glenn and State Police Trooper Mark Keyes. (Id.). With Glenn and Keys was Defendant Frank Caple. (Id.). Caple was seated on a couch, handcuffed. (Id.). Harding testified that he had been in the house perhaps "a minute, a minute and a half" when he came upon defendant. (Id. at 26). Caple had been undressed when officers arrived, but that he had been given a pair of "shorts" to wear while seated on the couch. (Id.). Defendant probably remained naked and handcuffed on the couch for a minute before an agent provided him with shorts to wear. (Id. at 47). Eventually, officers provided him with other clothing. (Id. at 48).
Officers continued to "clear" the rest of the residence. (Id. at 27). Harding informed defendant that the agents had a search warrant and a warrant for his sa rrest. (Id.). Once Harding determined that officers had secured the residence, he went outside to his vehicle and retrieved a copy of the search warrant and the arrest warrant. (Id. at 28). He showed these documents to defendant. (Id.). Harding did not, however, read him the documents. (Id. at 52). Instead, he allowed defendant to examine them. (Id.). Defendant did not read the entire arrest warrant or search warrant affidavit--he would read parts of the documents, but did not appear to concentrate on them. (Id.).
Officers took the handcuffs off defendant, and at 6:25 a.m. Harding read defendant a copy of his standard Miranda rights. (Id.). Harding testified that he read defendant his rights "very slowly and deliberately to make sure" he understood. (Id. at 30). After reading each area of the rights to defendant, he asked him if he understood that right. (Id.). Once defendant had his rights explained to him and he agreed that he understood those rights, he signed the form in the presence of Harding and another task force officer. (Id. at 30-31). Harding testified that defendant never invoked his right to remain silent and never requested that an attorney be present. (Id. at 31). Harding also insisted that he had not offered defendant any inducement to sign the advice-of-right form, and did not offer him any special treatment in exchange for cooperating with the investigation or providing a statement. (Id. at 57). He did inform defendant that he was charged with a federal crime. (Id.). After defendant had signed the advice of rights form, however, Harding informed defendant that he could face serious jail time. (Id. at 57-58). Harding had concluded that defendant had become a bit "glib," and did not appear to be taking the charges seriously and warned defendant of the serious jail time he faced. (Id. at 57-58).
Harding also testified that defendant was sitting on the couch when informed of his rights. (Id. at 32). There was not a lot of noise in the house, and no one was searching in the living room where defendant was seated. (Id.). Officers were in other rooms inside the house. (Id.). Harding reported that defendant "appeared coherent, not to be under the influence of any drugs, alcohol or any other type of medication." (Id.). Defendant could answer basic questions and did not seem "overly depressed or sad," and was not "manic." (Id.). Instead, "he just seemed like he was very even keeled and aware of what was going on." (Id.). Harding saw no evidence that defendant was under the influence of drugs or alcohol at the time of his questioning. (Id. at 60-61). Defendant did not complain of discomfort during this period, and Harding denies making any threats to him. (Id. at 33). Defendant did, however, frequently yell to Mezick--held by officers in the kitchen of the residence--that he loved her. (Id. at 39). Officers eventually made these frequent shouts into a joke, telling defendant that they also loved him. (Id. at 39). Defendant would respond that he loved them too. (Id.). Harding testified that defendant may have had shackles on his legs when he signed the form, but none on his hands. (Id. at 34). Harding denied that officers made any promises to defendant to get him to speak. (Id.). Defendant refused Harding's offer of medical attention at the scene. (Id. at 33). Officers allowed defendant to use the bathroom. (Id.).
Defendant made several statements to Harding while in the residence. (Id. at 34). He admitted to possession of marijuana in a jacket pocket in a coat in another bedroom of the home. (Id.). He also admitted that there were guns in the house, but denied that they were his. (Id. at 35). Instead, defendant insisted that a friend, Henry, had dropped the guns off two nights before. (Id.). Defendant claimed that Henry lived in the house, but officers never found any evidence corroborating this claim. (Id.).
After officers completed their search of the defendant's residence and his car, they transported him to the FBI office at the United States Courthouse in Scranton, Pennsylvania. (Id. at 38). This transfer occurred two hours after agents first entered defendant's home. (Id.). When they arrived at the federal building, agents took defendant to an interview room. (Id.). They removed his handcuffs, keeping the shackles on his legs. (Id.). Agents allowed defendant to call his father. (Id.). Harding testified that defendant maintained his calm, reasonable demeanor during this period. (Id. at 38-39). Harding did not read defendant his rights again, though he did inform him that he could stop answering questions at any point. (Id. at 71). Agents asked defendant whether he was comfortable, and provided him with a can of Coca-Cola, which he drank. (Id. at 40).
While in the interrogation room, agents asked defendant a few more questions. (Id.). Harding wanted to know the purpose of the "large amount of stop and go traffic that was observed going to his apartment." (Id.). Defendant admitted that many people came through the residence, where "they would meet to do their thing and then leave." (Id.). Defendant also admitted to frequent marijuana use, saying "he had been smoking marijuana since he was 19 years old." (Id.). He smoked it "as often as he could get it." (Id.). Defendant denied, however, that he had ever used crack cocaine, or had any knowledge of it. (Id. at 40-41). Though he admitted to providing marijuana to others--"he said people give him marijuana and he, in turn, gives marijuana to other people"--defendant insisted that he never sold it. (Id. at 41). Defendant refused to provide the names of the people who stopped by his apartment. (Id.).
Defendant also admitted that his fingerprints would appear on the rifles recovered from his apartment. (Id. at 42). When asked about the handgun discovered in the apartment, defendant at first denied knowledge of the gun and then "made the statement that a lot of people have.25 automatics." (Id.). Harding had not revealed the caliber of the handgun he had found. (Id.). Defendant may, however, have had an opportunity to review an inventory of the items seized from his home before this questioning occurred. (Id. at 76). The caliber of the pistol seized was stated on that inventory. (Id.). This interview took place in a room with a table, six or eight chairs, "normal lighting, air conditioned or climate controlled... just a basic room that we use for interview purposes." (Id. at 43). Defendant had his legs shackled, but was not handcuffed. (Id.). Agents interviewed defendant for around thirty-five minutes and then concluded he was not being truthful. (Id.). They stopped the interview at around 10:30 a.m.. (Id. at 43-44). Harding testified that defendant never invoked his right to remain silent or to have an attorney present during the four hours and fifteen minutes he was with agents. (Id. at 44).
Defendant points to several factors which he contends establish that in the totality of the circumstances his statements were involuntary. The court will address each of these arguments in turn. First, defendant contends that the background, experience and conduct of the accused demonstrates that he did not give his statements voluntarily. Defendant points out that Agent Harding had long and extensive experience and training in law enforcement, but that he had little prior experience with law enforcement and only limited education. Defendant also insists that the "tone and content" of his statement demonstrate that he was scared and naive and did not understand the waiver of rights he signed.
The court disagrees with the defendant that his behavior during the search and his initial detention indicates that he gave his statement involuntarily. No evidence indicates that defendant was particularly scared or felt threatened or that he did not understand that he had signed a waiver of his rights. Agent Harding went through each part of the rights he waived with him, asking defendant if he understood each of the rights he waived. The evidence indicates that defendant maintained a calm demeanor throughout the interrogation, and did not appear particularly scared or upset at his situation. Defendant understood his situation and lucidly agreed to provide a statement.
Defendant also argues that the "time and manner" of the search and statement make suppression necessary. The search came early in the morning, surprising the plaintiff and his girlfriend when they were in bed, apparently unclothed. A large number of officers burst into the apartment, yelling. Such a situation, defendant contends, would create a climate of confusion and fear and leave him less likely to conclude that he had a choice on whether to speak to the police. The court disagrees with the defendant on these grounds as well. While defendant and his girlfriend were surely shocked by police officers' entry into their dwelling, the court notes that every search consists at least in part of officers entering a dwelling and demanding access and information; the mere presence of police under such circumstances does not by itself create a coercive environment. Indeed, "'mere emotionalism and confusion do not necessarily invalidate' confessions." Miller v. Fenton, 796 F.2d 598, 613 (3d Cir. 1986) (quoting Corn v. Zant, 708 F.2d 549, 567 (11th Cir. 1983). As such, a court must examine the circumstances more closely to determine whether a coercive environment existed. Here, testimony indicates that after the initial entry, police behaved in a calm and businesslike manner. Officers immediately provided defendant's girlfriend with clothing, gave defendant shorts to wear after his initial arrest and eventually provided him with additional clothing. The defendant's own behavior under the circumstances, which testimony described as calm and rational, even joking with officers, also indicates that defendant did not feel compelled to provide the information he did.
The defendant also contends that his statement was drug-induced and thus involuntary. Such a statement would indeed be suspect, because it might not be product of the defendant's free will. See United States v. Swint, 15 F.3d 286, 289 (3d Cir. 1994) (holding that "[i]n determining whether a confession was voluntary, we must satisfy ourselves that the confession was'the product of an essentially free and unconstrained choice by its maker,' that it was'the product of a rational intellect and a free will' and that the appellant's will was not overborne.'") (quoting United States ex rel. Hayward v. Johnson, 508 F.2d, 236 (3d Cir. 1975)). No testimony in this case, however, indicates that defendant was intoxicated when he spoke with Agent Harding. He answered questions in a lucid manner, appeared alert and evidently understood the situation and the questions officers asked him. Defendant points to admissions he made to Agent Harding that he was a frequent marijuana user, smoking the drug whenever he had the opportunity. He therefore argues that Agent Harding should have asked defendant if he was under the influence of marijuana before obtaining his Miranda waiver and statement. By failing too do so, defendant argues, Harding violated his Fifth Amendment rights. The court rejects this argument, since the question here is not whether Agent Harding should have concluded that defendant was intoxicated, but whether "his confession was not the product of rational intellect and free will." Townsend v. Sain, 372 U.S. 293, 307 (1962) (internal quotation marks, citation omitted). No evidence indicates that intoxication left defendant incapable of exercising his free will in speaking with police. Whether Agent Harding sought to determine whether defendant was intoxicated is not relevant to the voluntary nature of defendant's statements. See, e.g., Blackburn v. Alabama, 361 U.S. 199, 205 (1960) (finding a confession from a defendant determined to be mentally ill inadmissible, even though the officers who interrogated defendant reported that he had behaved normally during questioning).
The defendant next argues that his statement was the product of improper inducement and misrepresentations by Agent Harding. Agent Harding informed defendant that he would be charged with a federal crime and faced a long jail sentence. Harding also told plaintiff that cooperation with law enforcement officials was in his best interest. "A promise by a law enforcement officer may qualify as coercion." United States v. Jacobs, 431 F.3d 99, 109 (3d Cir. 2005). "[T]he voluntariness of a confession does not depend solely upon whether it was made in response to promises. Instead, we must determine voluntariness by judging the totality of the circumstances." United States v. Walton, 10 F.3d 1024,1028 (3d Cir. 1993). "The question of voluntariness ultimately turns on whether the totality of the circumstances indicates that the will of the suspect was overborne by government coercion." Alston v. Redman, 34 F.3d 1237, 1253 (3d Cir. 1994). Thus, "a promise--express or implied--is a factor (indeed, a potentially significant one) in the totality of the circumstances inquiry as to whether a statement was voluntary." Jacobs, 431 F.3d at 109.
The court finds that in the totality of the circumstances defendant's statements were not coerced by any alleged promise made by Agent Harding or other officers in connection with them. First, the testimony indicates that Agent Harding did not make any comments about the serious nature of the charges until after defendant had already signed the advice-of-rights form and gave notice that he understood that he had no obligation to speak. The testimony in the case also indicates that Harding did not offer defendant any inducement prior to signing the form, and did not indicate that the charges would be less if defendant did so and spoke to the police. Even after Harding informed defendant that he faced serious charges, he did not offer reduced charges as an inducement to induce defendant to speak. The evidence, therefore, does not indicate that defendant had an initial reluctance to speak which was only overcome by police officers' promise of a lighter sentence in exchange for cooperation.
Finally, defendant contends that the length of his interrogation and the two separate locations where interrogations were held should render his statements inadmissible.*fn1 The court finds that the totality of the circumstances indicates that neither the length of the interrogation nor the fact that it took place in two separate locations created a coercive environment that rendered defendant's statement involuntary. The testimony indicates that plaintiff remained relaxed and calm throughout the time he was questioned in custody. Nothing shows that defendant made his statements in order to bring an end to an unbearably long interrogation. Indeed, the testimony indicates that defendant became less truthful as the day dragged on; Harding ended the interrogation when he concluded that defendant no longer desired to cooperate. Likewise, no evidence indicates that the change in location undermined defendant's understanding of his rights or created a coercive environment that rendered defendant's statements a product of police pressure. See, e.g., Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (excluding a confession as coerced when "prosecutors [were] serving in relays to keep a defendant witness under continuous cross-examination for thirty-six hours without rest or sleep in an effort to extract a'voluntary' confession.").
All of the evidence, therefore, indicates that defendant's statements to officers were a product of his own free will. The totality of the circumstances do not indicate that the defendant's will was overborne to the point where his statements were the product of coercion. The court will deny the defendant's motion to exclude his statements.
B. Suppression of Evidence Seized in Consensual Body-Wire Recording
The defendant also seeks to suppress audio recordings made through a consensual body recording device worn by a cooperating witness (Doc. 80). The incident in question occurred on June 13, 2007. The recording of these statements took place in defendant's home, and the government did not obtain any sort of warrant or other judicial approval before making the tapes. Agents, however, did obtain the permission of the cooperating witness to record the statements. Defendant insists that such recording violated both federal law and his Fourth Amendment right to be free of unreasonable search and seizure.*fn2
Defendant points to the Omnibus Crime Control and Safe Streets Act of 1968 ("the Act"), 18 U.S.C. §§ 2510 et seq., to argue that the warrantless recording of his conversation with the cooperating witness violated federal law. The purpose of this statute, the Supreme Court has found, "was effectively to prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act." United States v. Giordano, 416 U.S. 505, 514 (19). Moreover, the Act prohibits introduction of evidence obtained in violation of the statute from being "received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States." 18 U.S.C. § 2515.
If the conversation between the cooperating witness and the defendant was recorded in violation of this statute, then, the court would be compelled to prevent its introduction at trial. The Act, however, provides a number of exceptions to that rule. One relevant exception exists in 18 U.S.C. § 2511(2)(c), which provides that "it shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c). Thus, "[t]he warrantless recording of a conversation with the consent of one of the parties may be admitted into evidence in a federal prosecution, provided the Government introduces clear and convincing evidence of the accuracy of the recording." United States v. Seibert, 779 F. Supp. 366, 369 (E.D. Pa. 1991).
Thus, under the statute the defendant cannot challenge the introduction of the recording, since all parties agree that it was made with the consent of the confidential informant. Of course, if the taping violated the Fourth Amendment, the court would be compelled to suppress the evidence even if the taping did not violate the Act. As a matter of Fourth Amendment law, however, the Constitution "does not protect a party to a conversation who reposes a trust or confidence in an undisclosed government agent or informant." United States v. Mitlo, 714 F.2d 294, 295 (3d Cir. 1983). Further, "[f]or the undisclosed agent to simultaneously record the conversation with an electronic recording device on his person is no violation of the fourth amendment." Id. "[A] person has no legitimate expectation of privacy in conversations with a person who consents to the recording of the conversations." United States v. Lee, 359 F.3d 194, 201 (3d Cir. 2004). "[I]f a person consents to the presence at a meeting of another person who is willing to reveal what occurred, the Fourth Amendment permits the government to obtain and use the best available proof of what the latter person could have testified about." Id. at 200. Thus, "[w]here one party to the conversation consents to the electronic monitoring, the conversation is admissible." Mitlo, 714 F.2d at 295.
Defendant attempts to distinguish these cases by pointing out that the conversation here occurred in plaintiff's home, where he had a heightened expectation of privacy. The defendant in Lee raised a similar argument. In that case, the confidential informant's recording took place in the defendant's hotel suite. Defendant argued that the recording should be suppressed, because it "occurred in [his] hotel room, a place where a person has a heightened expectation of privacy." Lee, 359 F.3d at 200. The Third Circuit Court of Appeals rejected this argument, finding that "[w]hat is significant is not the type of room in which surveillance occurred but [defendant's] action in admitting [the confidential informant] to the room." Id. at 201. The expectation of privacy that defendant had while alone in his room "vanished" when he invited the informant into the room. Id. The court concludes that the same reasoning applies here: defendant invited the informant into his home and spoke freely with him. He did not have an expectation of privacy for the conversation in that setting and his recorded conversation with the informant is not protected by the Fourth Amendment. The informant could testify to the contents of this conversation in court, and the court will not prevent the government from supplying the jury an accurate recording of that conversation.
Defendant also points to Pennsylvania case law that holds that the state constitution and law prevent the introduction of recordings made in a defendant's home by a confidential informant. See Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1994) (finding that a confidential informant's recording should be suppressed because "[i]f nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home."); 18 PENN. CONS. STAT. § 5704 (establishing procedures ...