United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON MOTION TO SUPPRESS [DKT.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Suppress, [Dkt. No. 154], filed by
the Defendant Randy Marchi. (“Defendant” or
“Mr. Marchi”). Defendant seeks to suppress
evidence seized on February 26, 2017, during a warrantless
search (“Search”) of his Apartment located at
2559 Main Street, Third Floor, Bridgeport, CT
(“Apartment”) where he lived with Guissel Gumbs
(“Ms. Gumbs”) and her 9-year old son. The search
was conducted by numerous law enforcement officers, including
members of the Federal Bureau of Investigation
(“FBI”), Bridgeport Safe Streets Task Force
(“BSSTF”), Drug Enforcement Administration
(“DEA”) and Bridgeport Police Department
(“BPD”) (collectively, “Agents”). Ms.
Gumbs signed an FBI Consent to Search Form on the day of the
Search. Defendant contends that Ms. Gumbs did not voluntarily
consent to the search and therefore the fruits of the search
should be suppressed.
the search, the Agents found a firearm as a result of which
Defendant was indicted for possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(2); and
conspiracy to possess with intent to distribute heroin in
violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(i),
and 846. For the reasons that follow, the Court finds Ms.
Gumbs did not invite the Agents to enter the Apartment or
sign the Consent to Search Form voluntarily and accordingly
GRANTS the motion to suppress any and all objects and
materials seized during the Search, including but not limited
to the firearm.
also seeks to suppress other materials, specifically any
statements made, either as directly tainted or as fruit of
the poisonous tree, and any yet unspecified materials,
statements or other evidence subsequently obtained through
the use of motions, applications or other petitions, upon
which the materials or statements obtained as a product of
the Search were based. As Defendant has offered no evidence
relating to such other material and statements, the motion to
suppress such other unspecified material and statements is
DENIED without prejudice.
Court conducted a suppression hearing on February 9, 20, and
24 of 2018. At the hearing, the Government presented the
testimony of DEA Agent Hoffman (“Agent Hoffman”)
and Bridgeport Police Officer and Task Force Member Pereira
(“Officer Pereira”), and the Defendant presented
the testimony of Ms. Gumbs. From the testimony adduced at the
hearing, the Court finds the following facts proven by a
preponderance of the evidence.
case involves a drug conspiracy investigation, which began in
2015. Defendant was one of several targets of the
investigation. Mr. Marchi had no criminal record. Although he
had once been arrested for a firearms offense, he was never
convicted, the charges were dismissed, and the record of his
arrest had been expunged.
the investigation, Officer Pereira conducted surveillance on
Mr. Marchi and Ms. Gumbs both day and night. Officer Pereira
observed them enter and exit 2559 Main Street, Bridgeport, CT
on many occasions, including instances in which he could see
lights being turned off and on, affording him an opportunity
to determine in which apartment they lived. He also had
opportunities to determine whether there were mailboxes
and/or door bells marked with the names of the occupants and
to speak to neighbors. Members of the investigation team knew
where Ms. Gumbs worked and what she did for a living. Based
on the foregoing, the Court finds that at least some members
of the investigation team knew the apartment in which Mr.
Marchi and Ms. Gumbs lived.
February 26, 2017, a Task Force led by Agent Hoffman executed
numerous search and seizure warrants of residences and motor
vehicles, including a white Honda Accord, which Marchi
regularly drove but was registered to the mother of
co-defendant Ivan Rosario. The vehicle had been surveilled
both physically and electronically using a GPS monitoring
device. There was no evidence the surveillance yielded
information that either Mr. Marchi or Ms. Gumbs was involved
in drug trafficking. The warrants were executed in
anticipation of seizing a large quantity of drugs but did not
yield the expected results. Inside Marchi's white Honda
Accord, investigators recovered grinders used for processing
heroin powder, thousands of heroin packaging packets, and
nearly twenty stamps for branding street-level heroin.
at approximately 12:30 PM, the Agents decided to conduct a
“knock and talk” and question Randy Marchi.
Before the Agents arrived at the Apartment, Marchi noticed
his vehicle was missing and went to find it, leaving Ms.
Gumbs and her 9-year old son alone at the Apartment. Agent
Hoffman testified that he knew a state Superior Court Judge
for the Judicial District of Bridgeport was assigned to sign
warrants on that Sunday. The Agents did not obtain a warrant
for Mr. Marchi's arrest or a warrant to search the
Apartment. In response to the Court's question, Agent
Hoffman testified that the reason they did not obtain a
warrant was that they wanted a federal warrant rather than a
state warrant. Thereafter, in response to a leading question
on redirect, Agent Hoffman confirmed that he did not know in
which apartment Marchi lived and therefore could not have
obtained a warrant.
Agents approached the multi-family dwelling in which the
Apartment was located from the front and rear simultaneously.
When they were unable to gain entry through the back door,
most of the Agents entered the unlocked common door to the
enclosed front porch while the others surrounded the
building. The Agents at the door knocked on the locked common
front door, which led to a common vestibule from which the
individual apartments were accessible (“Vestibule
Door”). They knocked incessantly for several minutes.
Ms. Gumbs responded, wearing nothing but a sheer
nightgown. Ms. Gumbs answered the locked Vestibule
Door. She stood in the vestibule responding cooperatively to
the questions posed to her by Agent Hoffman while the other
Agents looked on.
to Ms. Gumbs, Agent Hoffman put his foot over the threshold
of the Vestibule Door, preventing the door from closing and
asked for Randy Marchi. Ms. Gumbs responded that he was not
home and explained that he noticed his vehicle was missing
and had gone to find it. Agent Hoffman asked if she could
contact him. Ms. Gumbs agreed to call him and said she would
go get her telephone. Although the door did not close behind
her, there is no evidence that she was aware of it at the
time she went upstairs or if she realized it later.
after Ms. Gumbs left the vestibule did the Agents enter the
vestibule. Ms. Gumbs proceeded up the steps to the third
floor and passed through the locked front entrance door to
the Apartment and retrieved her telephone. Moments later,
eight or so Agents followed Ms. Gumbs to the third floor,
concerned that she was taking too long and that she might be
informing Mr. Marchi of their presence. As Ms. Gumbs opened
the Apartment Door to return to the vestibule she was
confronted by approximately eight Agents. Agent Hoffman was
at the last stair leading to the Apartment and the other
Agents were behind him in a line mounting the stairs. There
was no landing separating the last stair on which Agent
Hoffman stood and the threshold of the Apartment Door behind
which Ms. Gumbs was standing as she opened the Apartment Door
and encounter the Agents. The Apartment was a small space
consisting of three rooms all of which were visible from the
Apartment Door. The Agents entered the Apartment, without
asking permission or receiving an invitation, with their
firearms brandished in the ready-fire position forcing Ms.
Gumbs to retreat.
entry, the Agents instructed Ms. Gumbs to sit on her bed with
her young child. She was still dressed only in her nightgown.
She did as she was told. The Agents conducted a cursory
protective security sweep during which Agent Hoffman
attempted to question Ms. Gumbs. Agent Hoffman was unable to
question Ms. Gumbs because she only speaks Spanish. She asked
Agent Hoffman for “the paper, ” meaning a search
warrant. Despite her clear indication that she wanted to see
the Agent's legal authority to enter her home without her
consent, the Agents told her they did not have one and asked
her to sign the FBI Consent to Search Form. She declined,
explaining that she did not understand everything that was
being said to her.
whatever she was told, she understood that if she did not
sign the Consent to Search Form the Agents would get a
warrant and search anyway, and that because the Agents
smelled something illegal in the bedroom, the Department of
Children and Families (“DCF”) would be called and
her son could be taken away and that United States
Citizenship and Immigration Services (“USCIS”)
would be called and she could be deported. Fearing the loss
of her son and deportation, she asked if a Spanish-speaking
officer could be called to translate. Even at this point, she
persisted in her refusal to consent.
Officer Pereira was summoned. He speaks some Spanish. He
spoke to Ms. Gumbs and attempted to befriend her. He asked
her repeatedly to sign the release and told her it would be
best for her if she did. He was not present when she was told
something that led her to fear that DCF and USCIS would be
called, and he did not tell her DCF and USCIS would not be
called if she persisted in refusing to consent to a search of
the Apartment and to demand to see a warrant. He also never
told her she has the legal right to refuse to consent to the
search and persist in her earlier demand to see a warrant.
Consent to Search Form states:
1. I have been asked by Special Agents of the Federal Bureau
of Investigation to permit a complete search of: [the address
is hand written]. 2. I have been advised of my right to
refuse consent. 3. I give permission voluntarily. 4. I
authorize the agents to take any items they determine may be
related to the investigation.
[Mot. Suppress Gov. Ex. 3]. It is dated and signed by Ms.
Gumbs. Officer Pereira signed attesting that he witnessed her
Officer Pereira's signature is written, “Translated
by TFO Ilidio Pereira, ” in what appears to be the same
handwriting as the address. Officer Pereira denied
translating it, intimating that he had not seen the
handwritten statement that he did. He testified that Ms.
Gumbs used a translation application on her phone to
translate the form and that he overheard the translation and
that the translation was accurate. The Court finds the
Consent to Search Form was altered by a law enforcement
officer involved in the Search sometime after it was signed.
The Court further finds that this alteration was prompted by
the knowledge that Ms. Gumbs did not proficiently speak
English and that, had the consent form not been translated,
her consent could not have been voluntary. In addition, the
Court finds that Ms. Gumbs was not advised of her right to
persist in her refusal to consent to the Search as the form
states. Finally, the Court finds Ms. Gumbs did not fully
understand the consent form because she signed it falsely
acknowledging something occurred that did not occur.
Government introduced into evidence two photographs of Ms.
Gumbs and her son sitting on the bed in the Apartment while
the Agents were present. Ms. Gumbs is looking up at and
listening to Officer Pereira as he stands over her speaking
and gesturing in an authoritative manner. See [Gov. Ex. 8 at
USAO 2907-08]. In both photographs, she is wearing a sheer
nightgown. Her jaw is slack and her eyes are wide open in a