The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge
Defendant Darnell Fields is charged in a one-count indictment with possessing a firearm after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Fields has moved to suppress certain statements he allegedly made to a police officer the night he was arrested, as well as a handgun discovered by the police after they conducted an allegedly illegal search of his apartment. On March 13 and 17, 2003, the court conducted a hearing on both motions. The parties vigorously dispute what happened on the night the defendant was arrested. For the reasons explained below, Fields' motions to suppress statements and evidence are denied.
Motion to Suppress Statements
On the night of May 15, 2002, the government contends that Fields told Officer Gass that he "did have a gun, but it was only used for protection" on two occasions. The first allegedly occurred when Officer Gass initially approached Fields and Officer Gass asked the defendant if he was holding guns for the Gangster Disciples street gang. Assuming the statement was made by Fields, the court must determine whether the defendant was in custody of the Chicago police at the time he made the statement. A person in custody must be warned, prior to questioning by law enforcement agents, that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). It is undisputed that Fields was not given a Miranda warning prior to his first alleged admission.
To determine whether an encounter with the police rises to the level of "custody" for Miranda purposes, the court must examine all circumstances surrounding the questioning, but the central issue is whether there was a restraint on the citizen's liberty of movement to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994). In this case, Fields must show that "a reasonable person in the defendant's position would believe that he or she was [not] free to leave." United States v. Wyatt, 179 F.3d 532, 536 (7th Cir. 1999) (quoting United States v. Lennick, 917 F.2d 974 (7th Cir. 1990)). The parties agree that the court should consider the following factors in determining whether the defendant was in "custody": (1) whether the encounter occurred in a public place; (2) whether the individual consented to speak to the officers; (3) whether the officers informed the individual that he was not under arrest and was free to leave; (4) whether the individual was moved to another location; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the individual of documents he needed to continue on his way; (7) whether the officer's tone of voice was such that their requests would likely be obeyed. Wyatt, 179 F.3d at 535.
The court concludes that the defendant has not presented sufficient evidence demonstrating that his encounter with police at 5253 W. Potomac, at the time of his alleged admission, amounted to "custody" for the purposes of Miranda. Officer Gass' testimony regarding the circumstances surrounding the defendant's alleged admission is undisputed, because none of the defense witnesses testified about the circumstances that surrounded the initial conversation between Officer Gass and the defendant.*fn1 Their testimony strongly suggested that Fields was in custody at some point after the alleged admission was made, but not at the time it was made according to Officer Gass. The court will not disguise its skepticism about the sequence of events as testified to by Officer Gass, including Field's voluntary incriminating admission; Officer Gass has the defendant, an individual experienced in the workings of the criminal justice system, volunteering an admission (which he obviously believes is exculpatory) when he has no basis for believing that the officer has incriminating evidence and there is no reason to attempt to exculpate himself. Moreover, it is odd that the officers did not seek permission to search from this highly cooperative suspect. However, because the defendant did not take the stand, the court only has before it Officer Gass' undisputed testimony as to what happened at the time of the alleged statement. The court must therefore conclude that Fields was not in custody for purposes of Miranda at the time of his alleged admission.
The defendant also moves to suppress a second statement allegedly made by the defendant after he received his Miranda warning. Officer Gass testified that after he retrieved the gun from the apartment, he returned to the street and joined Fields, who had already been placed in the back seat of a squad car. According to Officer Gass, he read the defendant his Miranda rights, after which Fields allegedly repeated that he owned a gun, but only for protection. Fields argues that this second statement should be suppressed under the fruit of the poisonous tree doctrine based on the suppression of the first statement. This argument fails in light of the fact that the first statement will not be suppressed. Fields' motion to suppress statements is denied.
Motion to Suppress Handgun
Fields argues that because the Chicago police conducted a warrantless search — without consent and absent exigent circumstances — of his apartment, the handgun they recovered must be suppressed. Tammy Winston, Fields' wife, testified at the hearing that she was asleep when three Chicago police officers entered her bedroom and woke her by shining flashlights on her. Ms. Winston testified that she did not give the officers consent to enter the apartment at any time. She further stated that the police officers directed her to the couch in the living room and one of the police officers sat next to her on the couch. She testified that while she waited on the couch, the other officers searched the apartment and recovered the handgun in a dresser drawer in the bedroom. Ms. Winston also testified that after they found the gun, the officers placed a sheet of paper in front of her (which she did not read) and told her to sign by the "X." She did so. She also testified that she and her husband had been home drinking that night and that she was intoxicated.
Not surprisingly, the government disputes the facts as described by the defense witnesses. According to Officer Gass, after Fields allegedly admitted that he did in fact have a gun in his apartment, he went to Fields' apartment and knocked on the door. Officer Gass testified that after Ms. Winston opened the door, he explained that he had information that her husband had a gun (or guns). He testified that Ms. Winston initially gave verbal permission to search the apartment. Officer Gass explained that while he engaged in a visual search of the apartment, Officer Rice brought up a consent to search form which Ms. Winston signed. By the time Officer Gass finished with his visual search, the form was signed and the officers began a formal search that resulted in the discovery of a loaded handgun in the bedroom dresser.
The Fourth Amendment protects people from unreasonable searches and seizures. U.S. Const. amend. IV; U.S. v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000). Without consent or exigent circumstances, warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). The court finds that the police officers properly obtained consent from Tammy Winston and, therefore, denies the defendant's motion to suppress the handgun found in Fields' apartment. It is undisputed that Ms. Winston signed the consent to search form. In light of the many inconsistencies in Ms. Winston's version of what happened on the night of May 15, 2002 (as told to the public defender investigator, the ATF agent, and the court), plus her undisputed testimony that she was somewhat groggy and drunk, the court cannot find her testimony credible as to the precise sequence of events upon which the resolution of this motion depends. Without describing every inconsistency, the court notes the following examples: details about whether or not the police officers had flashlights; what she said to the officers and what questions they asked her; and whether or not she signed a consent. Ms. Winston's demeanor on the stand also did not engender confidence in the veracity of her story.*fn2 Instead, the court finds more credible the testimony of Officer Rice. Officer Rice testified that he received a request to bring a consent form up to the apartment "several minutes" (but less than five minutes) after the officers entered the apartment. He further testified that he saw Officer Burzinski fill out the consent form and tell Ms. Winston that this was the form he previously described to her. Finally, he testified that he saw Ms. Winston sign the form. Officer Rice testified that he did not see Officer Gass (who was conducting a visual search of the apartment at the time) while he was in the apartment, which is consistent with Officer Gass' version of events in the apartment. The court therefore concludes that Ms. Winston signed the consent form before the officers began conducting a search of the defendant's apartment.
Fields argues that Ms. Winston's written consent should be disregarded because it was not voluntary. The question of whether one's consent to search was voluntary must be determined in light of the "totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Factors that should be considered include: the age, education, and intelligence of the individual giving consent; whether she was advised of her rights; how long she was detained prior to giving consent; whether she immediately consented, or whether the police officers made repeated requests for consent; the existence or absence of physical coercion; and whether the individual was in custody. Valence v. Wisel, 110 F.3d 1269, 1278 (7th Cir. 1999).
Even if Ms. Winston did not read the consent to search form, as she alleges, her consent to search is still valid, as she has not provided this court with evidence that she was coerced into signing the form. Ms. Winston testified that the three police officers roused her from her bed, shone flashlights on her, and ordered her to sit on the couch. She also testified that she was frightened by the police officers. Even if true, this behavior does not rise to the level necessary to make a finding of coercion. Cases in this circuit have held behavior much more coercive than that described by Ms. Winston to be insufficient to render a consent invalid. See United States v. Guiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (consent to search was voluntary even though officers brandished weapons, handcuffed defendant, and ordered him up against a wall); United States v. Wilderness, 160 F.3d 1173, 1174-75 (7th Cir. 1998) (consent to search was voluntary where police politely asked for permission to search while holding a gun pointed at floor); United States v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (consent to search voluntary even when police ordered defendant out of bed in the middle of night and handcuffed him, but did not badger him for consent or physically abuse or pressure him). Here, Ms. Winston was not touched or threatened in any way by the police officers. She admits that the police officers did not have their weapons drawn at any time while inside her apartment. She testified that no one threatened her or forced her to sign the consent form. Ms. Winston is an adult woman who likely has ...