DECISION AND ORDER
Defendant Joseph Antone moves to suppress over 200 grams of cocaine (both powder and crack) seized by the Middletown and Newport police as well as oral and written statements Antone made to the police. Based on the following findings of fact and conclusions of law, and pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure, the Court will grant the Motion to Suppress.
I. Background
On August 31, 2006, William Swierk, a detective with the Middletown Police Department, received an early-morning telephone call at his home. The police dispatcher on the other end of the line told Det. Swierk that a patrolman had found a despondent female wandering on Aquid-neck Avenue in Middletown; according to the woman, she had been poisoned and raped at the Bay Willows Inn on Bay Avenue (which is not far from Aquidneck). Det. Swierk then rendezvoused with his partner, Detective Kelly Mitchell, at the Middletown police station, and the two headed off to the Bay Willows Inn.
Three officers were already at the scene when Swierk and Mitchell arrived at about 4 a.m. The detectives were ushered to room seven, where the alleged rape had occurred. The external door was open, revealing a sitting room and, further along, an internal door, which had somehow freed itself from its hinges, leading to the bedroom. From their position in the sitting room, the detectives observed that the bedroom was littered with personal belongings and drug paraphernalia. One of the officers handed Det. Swierk a receipt showing that the room had been rented to Antone. Taking the receipt, Swierk and Mitchell left to find Antone and obtain his consent to search the motel bedroom. 1
The detectives’ testimony does not provide specifics, but it appears that Det. Swierk procured a list of Antone’s possible addresses from the Newport police station. The list took the detectives on a not-so-scenic tour of Newport, with stops at Bradford and Chapel Streets, Newport Hospital (to call on the professed rape victim for more information), and finally Marcus Wheatland Boulevard. Not yet
The parties dispute the critical elements of what happened next. Det. Swierk testified that Antone, fully clothed, opened the door about a single body width. Det. Swierk identified himself and Det. Mitchell, both of whom were not in uniform, as Middletown police officers investigating a sexual assault. Det. Mitchell said nothing but proffered her badge as well. Det. Swierk asked Antone if he had rented a room in Middletown the night before. Antone answered affirmatively. Det. Swierk then asked Antone if he would accompany them to the Middletown police station. According to both detectives, Antone agreed to do so and then, simultaneously opening his door further, said “Come on. I have to get my shoes.” When Antone began to walk inside, Det. Swierk noticed that Antone was wearing shoes already. Becoming somewhat concerned (Det. Swierk hypothesized that Antone could have been trying to get a gun), Det. Swierk followed Antone into the living-room area of the apartment and asked where he was going. According to Det. Swierk, Antone’s response was mumbled, so he followed Antone into the kitchen, where Antone explained that he was getting a pizza out of the microwave. Meanwhile, Det. Mitchell, who entered the apartment with Det. Swierk but remained in the livingroom, spotted what appeared to be cocaine in plain view on the coffee table and television stand. Det. Mitchell pointed to the cocaine when Det. Swierk and Antone emerged from the kitchen. When asked, Antone admitted that the cocaine was his. At that point, Antone was told to take a seat on the couch while one of the detectives contacted the Newport Police Department for assistance. Within a short time, the Newport police arrived, took Antone into custody, and transported him to the Newport police station.
Antone, who took the stand, testified to a different set of facts leading up to the arrest. After he answered the door, and Det. Swierk gave his spiel, Antone testified that he agreed to go to the police station but said “hold on while I get my keys.” Ms. Baker, eavesdropping from her recessed bedroom window some feet away, confirmed Antone’s account; she testified that Antone said “hold on, let me get my keys” (during direct) or “hold on, I need to get my keys” (during cross). As Antone began to walk toward the kitchen, where he kept his keys, he noticed that both officers had entered the livingroom, prompting him to say “I told you to hold on.” Antone grabbed his keys from the kitchen and hurried back to the living-room. When he returned to the living-room, Antone saw Det. Mitchell standing over the coffee table pointing at a can with a piece of plastic protruding from the lid. Det. Swierk said “No. Let’s go. We’re not here for this,” but when Det. Mitchell removed the lid and found cocaine, Det. Swierk remarked “Now we got to call the Newport police.” Antone then took a seat on the couch, admitted the cocaine was his
The Newport police brought Antone down the street (literally) to the Newport police station, and placed him in the cell block. At about 7:30 a.m., Detective Mark Mateos, of the Newport Vice Narcotics Unit, escorted Antone from the cell block to the narcotics room, and read him his Miranda rights. Antone signed a Miranda form and consented, in writing, to the search of unit 72D. Antone also agreed to talk with Det. Mateos, who, with Antone’s knowledge and consent, taped and later transcribed the interview. During the recorded interview, Antone made various confessions but denied that he gave the Middletown police consent to enter his apartment. Det. Mateos testified that the tape, which was played aloud during the suppression hearing, accurately reflected what Antone said during the recorded interview; however, he noted that Antone gave a different response (viz., that he had, in fact, given the Middletown police consent to enter his apartment) earlier during the unrecorded portion of the interview. Antone denied this, and testified that, other than agreeing to smoke a cigarette, he did not answer any questions before the recording. Antone also testified that he did not sign the consent-to-search form, or that he was under the mistaken impression that he was consenting to the search of room seven at the Bay Willows Inn.
Later that morning, Det. Mateos, with the assistance of another Newport police detective, obtained a warrant to search unit 72D. Beyond the cocaine found earlier, the search yielded nearly 200 grams of cocaine, drug ledgers and paraphernalia, video surveillance devices, a police scanner and radio frequency detector, and $3,809 in cash. During a second interview conducted after the search, Antone confessed to distributing crack cocaine. A federal grand jury indicted Antone on October 4, 2006.
II. Discussion
The burden of proving that the tangible and testimonial evidence obtained by the Middletown and Newport police was not the product of a Fourth Amendment violation lies with the government. To satisfy its burden, the government posits three separate theories, which the Court will discuss in turn.
A. Valid Consent
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
Silverman v. United States,
One such exception is for entries authorized by valid consent.
Schneckloth v. Bustamante,
The government argues that the testimony of two credible police detectives recounting that Antone said “Come on. I have to get my shoes,” is enough to find express consent to enter the apartment, or that Antone’s actions (simultaneously opening the door further and walking toward the rear of the apartment), at the very least, constitute implied consent. The government further contends that Antone’s consent was voluntary because of the absence of any coercion to gain entry to his apartment. The purpose behind the detectives’ visit underscores this point, the government argues, because, at best, Swierk and Mitchell hoped to find Antone and obtain his consent to search the motel
After careful consideration of the competing accounts of what Antone said at his doorstep, the Court finds that the government has not satisfied its burden to prove consent-in-fact, and therefore the Court need not reach the question of vol-untariness. 3
Simply put, the Court credits Antone’s account because he was a credible witness with a believable story, and because his neighbor, Ms. Baker, who corroborated the critical segment of his account, was credible as well and appeared to be a disinterested witness. The Court does not make these findings lightly. Antone is after all a convicted felon fighting to stay out of prison for the rest of his life; and, strangely, he testified that he did not sign a consent form that appears to bear his signature.
4
Also, Ms. Baker testified that Antone spoke clearly when — as was patently obvious to the Court during the hearing- — he does not.
5
In spite of these concerns, however, careful inspection of their respective testimony has convinced the Court that, in demeanor and inflection, Antone and Baker told a credible story. Swierk and Mitchell were generally credible as well, but the key difference is that their testimony lacks plausibility while Antone’s and Baker’s makes sense.
See Anderson v. Bessemer City,
Assuming for the moment that “come on” in these circumstances has the meaning the government ascribes to it
(ie.,
an invitation to enter the apartment as opposed to “you gotta be kidding me”), Antone’s account that he said “hold on” makes far more sense in light of what he was asked to do. All parties agree that Det. Swierk did not ask Antone if they could enter his apartment; instead, he asked whether Antone would go to the police station after telling him they were investigating a sexual assault. To this request, Antone responded affirmatively. For Antone, on his own initiative, to have said “come on” in the sense that he was inviting the detectives into his apartment in response to the officer’s request strains credulity. Of course, it is not impossible that a suspect would prefer to answer questions at home instead of the police station and so might parry the request to
Moreover, Det. Swierk’s testimony that Antone said “I have to get my shoes” is inconsistent with the undisputed fact that Antone already was wearing shoes when he answered the door. Also, although the Court’s finding hinges on the doorstep exchange, Det. Swierk’s testimony about the pizza, while not completely absurd, is at least a bit odd. Even if Antone had a predilection for pre-dawn microwaved pizza, and happened to be preparing one at the very moment Swierk and Mitchell stopped by, it is strange that Antone would not have said so in the first instance in lieu of a cockamamie story about getting his shoes. In other words, the detectives’ account bears all the earmarks of a misunderstanding of what was being said. But the fact that Antone was, in the detectives’ testimony, speaking nonsense was a signal to stop and clarify, not an excuse to march into the apartment.
In contrast, Ms. Baker corroborated Antone’s testimony, with insignificant discrepancy. Although Ms. Baker was several feet away when she overheard the doorstep exchange (during cross-examination, she testified that the distance between her bedroom window and Antone’s door was over five but not more than seven feet), she certainly was within earshot. Swierk and Mitchell were much closer, of course, and, it would seem, in a better position to hear what Antone was saying. But them superior vantage point does not make the substance of their testimony any more believable.
Lastly, during the recorded interview with Det. Mateos, Antone twice denied that he gave Swierk and Mitchell consent to enter his apartment. The government posits that the fact that Det. Mateos asked Antone about consent two times could hint at the possibility that Antone’s answer during the recording surprised him, presumably because it was different from his answer earlier. But Det. Mateos did not follow up with a question about Antone’s conflicting answers, as one would expect if such a situation were true. In an attempt to cure this oversight, the government observes that, at some point after the interview, Det. Mateos mentioned Antone’s conflicting answers to another detective, Michael Rego. However, in balance, this does not compare to Antone’s recorded denials and Det. Mateos’s failure to follow up. Without more, the Court is forced to give little credit to Det. Mateos’s testimony that Antone conceded that he had given consent before the tape recorder was turned on.
The consequence of crediting Antone’s account is that the center of the government’s implied-eonsent argument cannot hold.
Robbins,
the primary authority upon which the government relies, does not change this conclusion. There, two police officers, investigating a robbery at a store the night before, knocked on the defendant’s apartment door.
Robbins,
When a householder, knowing the identity and purpose of his caller, opens his door and turns back inside, he expresses by his actions as adequate a consent to entry as he would by a verbal invitation. To be distinguished are cases where the householder opens a door not knowing who is there and finds himself faced with armed authority. In such cases the act of opening the door may merely be to see who is there, and turning back may only be retreating. But a policeman who identifies himself and his purpose from the other side of a closed door has every reason to assume that the act of unlocking and opening the door, without more, is a consent to talk, and that the walking back into the room is an implied invitation to conduct the talking inside.
Id. at 48.
Robbins
differs from the present ease in several respects, two of them critical. The first and most plain in light of the Court’s finding above is that, in
Robbins,
the defendant’s conduct after he opened the door was accompanied by silence.
See Robbins,
The second and more nuanced point is that the police officer in
Robbins
did not ask the defendant whether he would go to the station until the officers were already inside. The question that prompted the defendant to admit the officers was a solicitation to speak with the defendant, presumably inside the apartment.
See Robbins,
Notwithstanding the lack of valid consent, the government presses an intriguing alternate argument premised on the fact that the detectives mistakenly (but in good faith) heard Antone say “come on” when he really said “hold on.” The government concedes that no authority is directly on point; however, it analogizes similar police mistakes in the context of
Terry
stops, see,
e.g., United States v. Coplin,
The government’s premise has some superficial appeal. It was obvious from his toothless testimony that Antone does not speak clearly; as the transcript reveals, he was asked to repeat himself several times. Given the detectives’ credibility and the rough proximity of “come on” and “hold on,” it is likely that Swierk and Mitchell, not accustomed to hearing Antone speak, simply misheard him. But Antone’s manner of speaking cannot reasonably explain mistaking “shoes” for “keys.” The two sound nothing alike. And there is nothing to explain Det. Swierk’s strange testimony about the presence of a pizza. This makes the government’s premise, which asks the Court to find a mistake of fact only with respect to the most critical moment of the exchange, somewhat harder to stomach.
There are also significant incongruities in the government’s analogies. On a factual level, the closest cases are those involving mistaken police perceptions resulting in a
Terry
stop. For example, in
Coplin,
two police officers mistakenly relied upon information from their cruiser’s onboard computer about the status of the defendant’s license in executing an investigatory stop.
Coplin,
However, the occupants of cars enjoy reduced expectations of privacy because cars, unlike homes, are inherently mobile and subject to pervasive regulation.
California v. Carney,
The line of third-party consent cases cited by the government is also inapt. First of all, in
Meada,
the First Circuit did not address whether the consenting party had actual authority; rather, the analysis ended once the court determined that the police reasonably believed it.
Meada,
The government’s third-string argument misses the mark too. The exclusionary rule has a few narrow exceptions based on a police officer’s reasonable reliance on the mistake of a neutral third party.
Leon,
But ignoring these deficiencies, and assuming without finding that Swierk and Mitchell simply misheard Antone say “come on” (when he really said “hold on”), the Court finds that an objectively reasonable police officer would not have believed that Antone consented to the entry of his home. As previously discussed, Det. Swierk asked Antone whether he would come to the police station, and Antone said that he would. To a reasonable person, Antone’s unsolicited statement, “come on,” would have been a puzzling follow up to Det. Swierk’s introduction and question.
Cf. Marshall,
Under the totality of the circumstances, the entry was unlawful. As a consequence, the cocaine Det. Mitchell seized from the living room, even if it was in plain view, must be suppressed.
11
See Segura v. United States,
C. Attenuation of the Taint
Where, as here, a search following an illegal entry is premised upon the consent of the defendant, the question becomes whether the tangible and testimonial evidence subsequently obtained is justified on the basis of that consent or is indelibly tainted by the initial illegal entry. An inquiring court must determine whether consent “has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Wong Sun v. United States,
To satisfy its burden, the government observes that Antone was read and then waived his Miranda rights, and, also, that he signed a consent form that advised him of his right to refuse consent. According to the government, signing a consent form itself constitutes an “intervening act” sufficient to dissipate the taint, if any, remaining from two hours of introspective confinement. Further, rehashing an earlier argument, the government contends that there is no evidence of flagrant police misconduct that would justify the harsh remedy of exclusion in this case.
A review of the Brown factors leads the Court to conclude that, on balance, the unlawful entry inexplicably influenced Antone’s written consent at the police station, and that the government has failed to satisfy its burden to prove attenuation.
The proximity of Antone’s interrogation hurts rather than helps the government’s position. Although the case law is con-cededly anecdotal in this regard, a span of about two hours is, in this writer’s estimate, insufficiently remote where, as here, that time is spent entirely in police custody.
See, e.g., Taylor v. Alabama,
With respect to the next factor, the continuum of events that began with Det. Swierk’s unlawful entry proceeded uninterrupted through at least the point at which Antone gave written consent. The fact that Antone signed a consent form after Det. Mitchell had already discovered cocaine in the living room — cocaine that Antone admitted was his — does not break this causal chain. In
Brown,
the Supreme Court noted that the defendant’s previous confession during the course of his illegal detention, believed incorrectly by him to be admissible, “bolstered the pressures for him to give the second [confession], or at least vitiated any incentive on his part to avoid self-incrimination.”
Brown,
At first glance, the final factor — purposeful and flagrant police misconduct— would seem to militate against suppression in this case. Swierk and Mitchell clearly believed that Antone consented to the entry, and there is no evidence of threatening or abusive tactics of the type that strongly favored suppression in
Brown,
Furthermore, under the exclusionary rule, to which this factor is inexorably tied,
Reed,
Because observance of
Miranda
alone cannot break the causal chain stretching back to the unlawful entry,
Brown,
III. Conclusion
For all the foregoing reasons, the Motion to Suppress is GRANTED.
It is so ordered.
Notes
. The indictment does not charge Antone with any wrongdoing associated with the motel room.
. A warrantless nonconsensual entry of a residence may also be reasonable under the Fourth Amendment if the government can demonstrate the presence of "exigent circumstances,”
Warden v. Hayden,
. The fact that Antone, upon returning from the kitchen, appears to have acquiesced to the police presence is not a substitute for voluntary consent, for it is long settled that the government’s “burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”
Bumper v. North Carolina,
. It should be noted that, to this writer's untrained eye, Antone’s signature on the consent form does not exactly match his signatures on two other documents in evidence (the room receipt and the Miranda form). But, for whatever reason, defense counsel did not press the issue. As defense counsel’s post-hearing memorandum makes clear, Antone’s position is that, even if he did sign the consent form, it did not remove the taint associated with the unlawful entry.
.Antone has difficulty communicating effectively because he has no teeth. It is odd that Ms. Baker did not readily concede this point, but one possible reason for this may be that, as Antone’s neighbor and acquaintance (although she testified that they were not friends), she has less difficulty understanding him than others might have.
. The government references two scope-of-consent cases as well,
Florida v. Jimeno,
. It is not entirely clear whether the government argues that the entry was lawful because, based on the miscommunication, it was reasonable for Swierk and Mitchell to believe that Antone consented; or, notwithstanding the unlawful entry, that the application of the exclusionary rule — the purpose of which is to deter future police misconduct, not innocent miscommunication — is inappropriate under these circumstances; or both. The government need only succeed on one: a lawful entry (in and of itself) does not violate the Fourth Amendment, and an unlawful entry (absent subsequent wrongdoing) does not necessarily compel suppression.
See Leon,
. This point also further distinguishes the Terry stop cases. The mistakes in Coplin and Fox, as between person (police officer) and object (computer screen or license plate light), were incapable of being corrected until after the stop was effected. That obstacle is specific to the traffic-stop context; if it exists in other contexts as well, the doorstep exchange in the present case is not one of them.
. The
Evans
Court declined to address the issue.
Evans,
. Although it may have been an oversight, defense counsel did not solicit testimony from Antone about whether he opened the door further as he retreated into his apartment, nor did Antone otherwise rebut that aspect of the detectives' testimony.
. The government concedes that the inevitable discovery doctrine would not apply if the entry were unlawful because there is no evidence that the Newport police would have sought a warrant without the knowledge gained from the entry.
See United States v. Dessesaure,