U.S. v. Isiofia

• Decision Date: 01 June 2004
• Docket Number: Docket No. 03-1287.
• Citation: 370 F.3d 226
• Parties: UNITED STATES of America, Appellant, v. Romanus ISIOFIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

370 F.3d 226

UNITED STATES of America, Appellant, v. Romanus ISIOFIA, Defendant-Appellee.

Docket No. 03-1287.

United States Court of Appeals, Second Circuit.

Argued: January 20, 2004.

Decided: June 1, 2004.

COPYRIGHT MATERIAL OMITTED

Steven D. Feldman, Assistant United States Attorney (Adam B. Siegel, Assistant United States Attorney, on the brief), for James B. Comey, United States Attorney for the Southern District of New York, New York, NY, for Appellant.

Tai H. Park (William Hauptman, on the brief), Shearman & Sterling LLP, New York, NY, for Defendant-Appellee.

Before: KATZMANN, B.D. PARKER, Circuit Judges, and PRESKA, District Judge.^*

B.D. PARKER, JR., Circuit Judge.

The United States appeals from an order of the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge), suppressing physical evidence — principally social security cards bearing various numbers and names — seized in Defendant Romanus Isiofia's apartment. The seizure by at least eight federal and New York City law enforcement officers occurred during a warrantless home search after the agents, according to the District Court, encamped in the apartment for a lengthy period of time in furtherance of their investigation and apparently in anticipation of obtaining Isiofia's consent to the search. Following a hearing, the District Court concluded that the items were seized in violation of the Fourth Amendment. Because we conclude that the District Court did not clearly err in concluding that Isiofia's consent was not voluntary, we affirm.

BACKGROUND

In March 2001, the Cole Computer Corporation, a computer vendor, was contacted by Modular Computers inquiring about the purchase of some $12,000 in computer parts. Modular subsequently faxed a purchase order to Cole, which provided four different credit card numbers and requested that the cost of the computer parts be split equally among the cards. A letter from a "Dennis Brown," the "Director" of Modular, accompanied the purchase order and purported to authorize the purchase. Cole initially processed the order, but subsequently suspected that the transaction was fraudulent, canceled it, and contacted the U.S. Secret Service.

After an investigation, the Secret Service learned that the charges were unauthorized and that the four credit cards had been stolen. The Secret Service also learned that "Dennis Brown" of Modular had asked Cole to ship the computer parts to an individual named "Robert Heskey" at an apartment in the Bronx, New York, that subsequently was determined to be Isiofia's address.

In an effort to identify and arrest the individual attempting to use the stolen credit card numbers, several law enforcement officers, including members of the Secret Service, the U.S. Postal Inspection Service, and the New York City Police Department, organized a controlled delivery of the computer parts. For reasons not apparent on the record, the agents did not apply for a search warrant or an anticipatory arrest warrant, although ample time to do so existed. On the morning of March 27, approximately six days after the parts were ordered, Postal Inspector Andre Esannason dressed as a mail carrier and, along with Special Agent Karen Fontana Graves of the Secret Service and Detective Tony Cruz of the NYPD, went to Isiofia's apartment with the packaged computer parts. After Isiofia admitted them into the building, Esannason proceeded to Isiofia's apartment door to deliver the package, while Graves and Cruz hid in a stairwell nearby awaiting the prearranged signal to move in and arrest whomever accepted delivery of the package as Robert Heskey.

When Esannason arrived at the apartment, the door was open and Isiofia was waiting in the doorway. Esannason informed Isiofia that he had a package for Robert Heskey and asked Isiofia if he were Heskey. Isiofia nodded affirmatively, but signed two different postal receipts with the name "T. Smith," something Esannason did not realize until later. After Isiofia signed the postal receipts, Esannason gave the prearranged signal for Graves and Cruz to move in for the arrest. As they approached, Isiofia backed into his apartment. The agents followed Isiofia into the foyer of his apartment, where they arrested and handcuffed him. Cruz then radioed for assistance, and Esannason, Graves, and Cruz waited inside Isiofia's apartment for the other officers to arrive. Moments later, five to seven law enforcement officers, including Special Agents William Guida and Brendan McGee, entered the apartment. At that point, Esannason informed Guida, the case agent, that Isiofia had signed the postal receipts with the name "T. Smith" rather than "Robert Heskey."

Shortly after entering the apartment, Guida and McGee (with no weapons drawn) conducted a protective sweep which lasted approximately two minutes. After the protective sweep, McGee handcuffed Isiofia to a chair at a table near the entrance to the apartment. When he asked Isiofia his name, McGee had trouble understanding the response and consequently asked Isiofia for identification. Isiofia pointed toward a closed briefcase across the room. McGee asked if he could open the briefcase and retrieve the identification, and Isiofia answered affirmatively. Inside the briefcase, McGee found an identification card for Isiofia and removed it. He also saw several other social security cards with other names on them, but did not remove them at that time.

The officers then completed arrest-related paperwork, a task that took approximately thirty minutes. The detailed information the officers obtained from Isiofia included his name, residence, bank account information, ages and dates of birth of his children, the names and phone numbers of several relatives, his passport number, and his employment and social security numbers. Isiofia was under arrest at the time this information was assembled, and the record reflects that the agents claimed they completed the paperwork in his home, as opposed to a police station, out of convenience.

After the agents completed the paperwork, McGee read Miranda warnings to Isiofia from a waiver-of-rights form, and Isiofia executed a written waiver of those rights. Isiofia also signed a consent-to-search form, permitting Guida and McGee to search his apartment and car. On that form, the space for the nature of the contraband or evidence sought was left blank. A short while later, McGee filled out another consent-to-search form for Isiofia's computer located in the apartment, which Isiofia also signed. On that form, the space for the names of the persons authorized to perform the search was left blank, but the nature of the contraband or evidence sought was identified as "crime/package delivery." No separate consent form was executed for the search of Isiofia's briefcase. After obtaining his signature on the two forms, the officers searched the briefcase, apartment, car, and computer. They found fifteen social security cards issued in the names of approximately eleven individuals. Among those fifteen cards were two in the name of Romanus Isiofia bearing different social security numbers.

In September 2002, a grand jury returned a four-count indictment charging Isiofia with (1) using a social security number assigned to him on the basis of false information to obtain payments or other benefits to which he was not entitled in violation of 42 U.S.C. § 408(a)(7)(A) and 18 U.S.C. § 2; (2) possessing a counterfeit resident alien card in violation of 18 U.S.C. §§ 2, 1546(a); (3) producing counterfeit resident alien and social security cards in violation of 18 U.S.C. §§ 2, 1028(a)(1), (b)(1)(A)(i), (c)(1); and (4) possessing social security cards, a false social security card, a U.S. passport, and driver's identification cards in the names of five or more individuals in violation of 18 U.S.C. §§ 2, 1028(a)(3), (b)(2)(B), (c)(1). Isiofia was not charged with purchasing the computer parts using stolen credit cards.

Isiofia moved to suppress the physical evidence seized from his apartment and a statement in which he told law enforcement officers his social security number. The District Court held a hearing at which Esannason, McGee, Graves, and Isiofia's wife, Mercy Orji, testified. After the hearing, the Court suppressed the physical evidence, but not Isiofia's statement. United States v. Isiofia, No. 02 CR. 520(HB), 2003 WL 21018853 (S.D.N.Y. May 5, 2003). In suppressing the physical evidence, the District Court articulated two, independent reasons for concluding that, despite Isiofia's consents, the items had been unlawfully obtained. Id. at *4. First, the Court found that the search violated the Fourth Amendment because the agents entered Isiofia's home without a warrant in the absence of exigent circumstances and because they performed a protective sweep in the absence of danger to those on the scene. It reasoned that the physical evidence seized following the warrantless entry and sweep was fruit of the poisonous tree not sufficiently attenuated from the illegality of the agents' search. Id. at *4-7. Second, the Court considered the circumstances of the arrest — including the amount of time the agents were in Isiofia's apartment, the number of agents there, the lack of information provided to Isiofia, the illegality of the entry into the apartment, and the behavior of the agents — and found his consents not voluntary. Id. at *7-9. "Under either analysis," the Court concluded, "the evidence obtained pursuant to [Isiofia's] purported consent[s] to search his briefcase and his apartment, car, and computer must be suppressed." Id. at *4. The government appeals.

DISCUSSION

On appeal, the government challenges both grounds for suppressing the physical evidence. First, it argues that neither the warrantless entry nor the sweep violated the Fourth Amendment, and that, in any event, Isiofia's consents were sufficiently attenuated from the entry and the sweep to purge any...