United States v. Mansour, 15-CR-160-A.
| Decision Date | 27 April 2017 |
| Docket Number | 15-CR-160-A. |
| Parties | UNITED STATES of America, v. Brenda MANSOUR, Defendant. |
| Court | U.S. District Court — Western District of New York |
Frank T. Pimentel, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Scott F. Riordan, Kenmore, NY, for Defendant.
DECISION AND ORDER
This case is before the Court on several motions filed by the Defendant, Brenda Mansour. The Defendant first moves to suppress evidence recovered from a warrantless administrative search of the convenience store at which she worked. That search was conducted by investigators from the New York State Department of Taxation and Finance (DTF) with the purpose of ensuring that the deli was in compliance with New York State laws related to the State's excise tax on cigarettes. During their search, the DTF investigators found, as they had during recent searches of other delis, packets of synthetic marijuana. The investigators gave the synthetic marijuana to agents from Homeland Security Investigations (HSI), who had accompanied the DTF investigators. The Defendant was then interviewed by the HSI agents.
The Defendant now moves to suppress the synthetic marijuana found during the search. She also moves to suppress the statements she made to the HSI agents. Magistrate Judge Scott, to whom the Court referred this case for all pretrial proceedings, recommends denying both motions. For the reasons stated below, the Defendant's objections are overruled, and the Court adopts Judge Scott's recommendations.
The Court briefly recites only those facts necessary to resolve the Defendant's objections.
At approximately 7:00 p.m. on May 27, 2015, investigators from the New York State Department of Taxation and Finance conducted a regulatory inspection of Mario's Deli in Niagara Falls, New York. The Defendant, whose parents own the deli, was working as the manager that evening. According to the DTF investigators, the purpose of their inspection was to ensure that the deli was in compliance with laws related to New York State's excise tax on cigarettes. Specifically, the investigators testified that they were looking for invoices to "match ... what [the deli] ha[d] on the shelves," cigarettes with "discrepancies" in their New York State tax stamp, and cigarettes that were "possibly shipped in from out of state" and which did not "have ... stamp[s] on [them]." Tr. 6:11–15; 67:23–68:4.
The search was conducted by three investigators from the DTF. The investigators were accompanied, however, by several local police officers. According to one DTF investigator, the police officers accompanied the investigators because the officers "know the area a lot better than [the DTF investigators] do so if we're walking into a place that ... wasn't as nice as some of the other ones ... they would be there for support." Tr. 7:14–18. One of the officers was a Niagara County Sheriff's Deputy, who locked—and then blocked—the deli's front entrance. Tr. 15:19–21; 73:1–3; 138:8–9. A DTF investigator described this as a "common practice." Tr. 19:24.
In addition, and as is particularly relevant in this case, the DTF investigators were accompanied by two agents from Homeland Security Investigations (HSI), a component of U.S. Immigration and Customs Enforcement. During recent inspections of other cigarette retailers, DTF investigators had "been finding a lot of synthetic marijuana." Tr. 8:1–2; 51:2–5; 69:4–8. When they did, the DTF investigators called agents from HSI to take custody of the synthetic marijuana. Tr. 8:1–5; 60:17–20. In the case of Mario's Deli, however, HSI agents accompanied the DTF investigators to allow the investigators to be "more productive"—that is, rather than "slowing down [the DTF investigators'] productivity [by] waiting for another agency to respond," HSI agents would be able to immediately take custody of any synthetic marijuana that the DTF investigators might discover during their search. Tr. 69:9–19. This was the first time the DTF investigators had brought an HSI agent with them (Tr.17:25; 60:21–23), but neither the DTF investigators nor their supervisors chose to bring HSI agents to Mario's for any particular reason. Indeed, each of the three DTF investigators who conducted the search of Mario's testified that they had no reason to believe that synthetic marijuana would be found there. Tr. 19:10–16; 69:22–24; 81:12–14.
Nonetheless, the DTF investigators quickly found synthetic marijuana in two locations at Mario's. Several DTF investigators recalled seeing the Defendant throw something as the investigators entered the deli. Tr. 9:14–15; 36:15–18. One DTF investigator then walked behind the counter and found a box. Inside that box was a cigar box, and inside the cigar box were packets of synthetic marijuana. The DTF investigator then told HSI Special Agent Edward Williams about what she had found.1 Tr. 113:2. After notifying Agent Williams of the synthetic marijuana, the DTF investigator found more synthetic marijuana in an open bag behind the sales counter. Tr. 42:18–43:6.
After the DTF investigators found the synthetic marijuana, the Defendant was approached by Agent Williams and HSI Task Force Officer Farkas.2 According to Agent Williams, he and Task Force Officer Farkas "[went] over, ... identif[ied] oursel[ves] with Government-issued identification verbally and asked if [the Defendant] would be willing to discuss" the synthetic marijuana that had been discovered by the DTF investigators. Tr. 104:15–19. The Defendant agreed, and the agents asked whether "there was a spot in the store like an office or something that she would like to go to talk with [the agents]." Tr. 105:22–24. According to Agent Williams, the Defendant suggested "go[ing] to the back of the store," an area that was not enclosed and that was "still in the main part of the store." Tr. 106:1–12. The Defendant's description of the interview location was slightly different, but not inconsistent with Agent Williams's: according to the Defendant, she and the agents went into a corner Tr. 154:25–155:5.
Agent Williams was armed, but his firearm remained holstered on his hip during the search and questioning. Tr. 109:13–110:1. Further, Agent Williams did not use handcuffs or any "physically threatening stance," nor did he see any other investigator or officer do so. Tr. 110:8–14; 176:2–4. As noted, however, during the interview a Niagara Falls Sheriff's Deputy remained at the deli's door. According to the Defendant, the door was locked and "[c]ustomers were trying to get in, they would unlock it and tell the customers the store is currently closed." Tr. 158:21–23.
At the back of the store, Agent Williams informed the Defendant that she was not under arrest, that she did not need to speak to the agents, that she was free to leave the store, and that he wanted to discuss "some concerns that we had regarding the suspected synthetic marijuana." Tr. 106:16–20; 107:10–13. Agent Williams did not read the Defendant her Miranda rights because, according to Agent Williams, "[s]he wasn't in custody." Tr. 106:25. After the Defendant agreed to speak to the agents, Agent Williams informed her that selling synthetic marijuana is a violation of federal law and that she could be prosecuted for doing so, to which the Defendant responded, "awe, f––– me." Tr. 107:6–22. See also Tr. 119:10–18. The Defendant testified that she "was scared for my life, thought I was going to get arrested because he told me that it was something serious, it was killing people." Tr. 155:6–9.
The agents then asked the Defendant questions about "how she obtained the packages." Tr. 108:1–2. Specifically, Agent Williams asked the Defendant "if she would be willing to kind of cooperate with us further to further the investigation to ... her supply chain." Tr. 11:8–10. Agent Williams testified that he "made no threats," but that he did "advise[ ] [the Defendant] that providing information ... would not be a bad thing." Tr. 116:16–20. Indeed, Agent Williams was vehement that he did not "make promises ... about what will happen if" the Defendant cooperated. Tr. 118:18–19. The Defendant testified that she "thought [she] was getting arrested" if she did not cooperate. Tr. 158:10. She then answered Agent Williams's questions with Tr. 124:3–6. The Defendant described Agent Williams as "civil" and "calm" during the interview (Tr. 157:16; 173:20), and she testified that she thought Agent Williams "was trying to help [her] out." Tr. 162:6. Ultimately, the Defendant concluded, although she was not arrested, she "thought [she] was gonna be under arrest." Tr. 175:2–11.
At the end of the interview, Agent Williams gave the Defendant his business card and asked her to call him the next day. Tr. 111:11–13; 161:25–162:2–5. The entire conversation lasted approximately ten minutes. Tr. 108:5.
The Defendant was ultimately charged with two counts of possessing, with intent to distribute, synthetic marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). See Docket No. 9 (Indictment). In proceedings before Judge Scott, the Defendant moved to suppress evidence recovered from the search of Mario's Deli. She also moved to suppress her statements to Agent Williams. As to her first motion, the Defendant argues, generally, that the search was not a true regulatory search, but that it was instead conducted with the intent of finding evidence of a crime. As to her second motion, the Defendant argues that she was in "custody" for purposes of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that her un-Mirandized...
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