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United States v. Marchi

United States District Court, D. Connecticut

March 21, 2018

RANDY MARCHI, Defendant.



         I. Introduction

         Before 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.

         During 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.

         Defendant 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.

         II. Facts

         The 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.

         This 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.

         During 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.

         On 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.

         Thereafter, 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.

         The 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.[1] 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.

         Unbeknownst 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.

         Only 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.

         Upon 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.

         From 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.

         Portuguese-speaking 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.

         The 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 signature.

         Under 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.

         The 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 ...

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