United States v. Sun

571 F.Supp.3d 22

UNITED STATES of America,

v.Teng SUN, Defendant.

1:19-CR-00135 EAW

United States District Court, W.D. New York.

Signed November 22, 2021

Emmanuel O. Ulubiyo, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Dominic H. Saraceno, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

Pending before the Court are objections filed by the government to a Report and Recommendation issued by United States Magistrate Judge Jeremiah J. McCarthy, granting the motion to suppress physical evidence and statements filed by defendant Teng Sun ("Sun"). (See Dkt. 76 (Report and Recommendation); Dkt. 79 (Objections)). Familiarity with the Report and Recommendation is assumed for purposes of this Decision and Order.

The Court has conducted a thorough review of the Report and Recommendation, the parties’ filings before this Court and Judge McCarthy, and the transcripts from the evidentiary hearing conducted before Judge McCarthy. In addition, the Court has considered the arguments advanced by counsel at the oral argument held before the undersigned on September 17, 2021. After a de novo review of the issues for which objections were filed, and after a thorough consideration of the issues raised in Sun's suppression motion¹ , the Court hereby accepts the Report and Recommendation in part. Specifically, the Court agrees with Judge McCarthy's conclusion that the government failed to carry its burden that Sun was properly mirandized, and therefore his statements must be suppressed. However, as further explained below, because the Court finds that further factfinding is required before it can render a decision with respect to Sun's consent to search his home, the matter is referred back to Judge McCarthy for further proceedings consistent with this Decision and Order.

BACKGROUND

I. Procedural History

Sun is charged in a one-count indictment as an illegal alien in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). (Dkt. 12). The charges stem from his alleged possession of several firearms and ammunition seized from his home on March 14, 2019. (Id. ; see also Dkt. 76 at 1). The Court referred all pretrial matters in the case to Judge McCarthy, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Dkt. 14).

Sun filed pretrial motions on February 23, 2020. (Dkt. 29). As part of his pretrial motions, Sun filed a motion to suppress physical evidence seized from his home and statements he made on March 14, 2019, along with a supporting affidavit. (Id. at ¶¶ 67-89; Dkt. 32). Sun argued that the search of his home was unlawful because there was no warrant and his consent to search—which was obtained after the search was already conducted—was coerced. (Dkt. 29 at ¶ 88). Further, Sun argued his statements to law enforcement were made when he was "in custody, represented by counsel and never mirandized." (Id. at ¶ 89); see also Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The government filed response papers on March 4, 2020. (Dkt. 30). An evidentiary hearing was held on June 15, 2020 and March 30, 2021, where Judge McCarthy heard testimony from U.S. Immigration and Customs ("ICE") Supervisory Detention and Deportation Officers ("SDDO") Frank Farkas ("SDDO Farkas") and Lisa Corsi ("SDDO Corsi"), Sun's former attorney Dominic H. Saraceno, and Sun himself.² (Dkt. 66; Dkt. 70; see also Dkt. 76 at 1). After receiving post-hearing briefing from the parties (Dkt. 71; Dkt. 72; Dkt. 73; Dkt. 74), Judge McCarthy held oral argument on the motion (Dkt. 75). On July 1, 2021, Judge McCarthy issued a Report and Recommendation, recommending that the undersigned grant Sun's motion to suppress. (Dkt. 76).

The government filed objections to the Report and Recommendation on July 29, 2021 (Dkt. 79), and Sun filed a response on August 16, 2021 (Dkt. 81). The Court held oral argument on September 17, 2021, and reserved decision. (Dkt. 83; Dkt. 84).

II. Evidentiary Hearing Testimony

SDDO Corsi testified that Sun was detained on March 14, 2019, at the Royalton Town Court for being a student out of status, meaning he had overstayed his student visa. (Dkt. 70 at 30-31). She encountered Sun in the courthouse parking lot along with four or five additional agents. (Dkt. 66 at 15-16). Sun had been at the courthouse on a gun charge, and his lawyer was present when he was taken into custody. (Dkt. 70 at 30-31). Sun's wife, who was also out of status and being taken into custody, was present in the parking lot in a vehicle. (Id. at 32). SDDO Corsi testified that her partner, Officer Sukmanowski, spoke with Sun's attorney and explained that the officers had an administrative warrant and were taking Sun into custody. (Dkt. 66 at 17). Sun had his passport, but his wife did not have her passport, which was back at their residence. (Id. ; Dkt. 70 at 32). SDDO Corsi spoke to Sun's wife, and testified that it was their "intention ... to take his wife back to the house to retrieve her passport," but that "[Sun] stated that he preferred to go." (Dkt. 66 at 17). SDDO Corsi testified that she did not hear Sun consent to entry into the home to retrieve the passport in the courthouse parking lot, but that he "consented to Officer Sukmanowski, as far as [she] recall[ed]," and that although Sun's wife did not consent to the officers entering the home, she was willing to go there with the officers to retrieve her passport, and further explained that "once we have someone in custody ... they stay in our care, custody, and control." (Id. at 21-22). Sun's wife was transported to a detention facility in Batavia, and SDDO Corsi and two other officers transported Sun back to his home to retrieve the passport. (Id. at 6).

While en route, the officers had some discussions with Sun, including taking his biographical information. (Id. ). SDDO Corsi also answered Sun's questions regarding joining the military. (Id. at 8). As they approached Sun's home, SDDO Corsi asked "the standard questions," including "if there were any other persons in the home; if there were any animals; if there was anything in the home that would ... hurt us, or potentially hurt us." (Id. ). Sun responded that he had firearms in the home. (Id. at 9). SDDO Corsi testified that she knew Sun was charged with gun possession in Royalton and she knew it was illegal for him to have firearms, but she did not mirandize him before asking him these questions:

Q. And—so you were asking—you knew that he was charged with gun possession in Royalton, correct?

A. Correct.

Q. And you knew it was illegal for him to have firearms, correct, because he was—overstayed his visa?

A. Correct.

Q. And yet you asked him about guns?

A. Correct.

Q. Did you Mirandize him before you asked him a statement that could incriminate himself?

A. I believe he was Mirandized before we pulled out of the parking lot of the courthouse in Royalton, by my partner, Officer Sukmanowski.

(Id. at 12-13). However, none of the documentation reflects that Sun was mirandized. (Id. at 13, 25). SDDO Corsi testified that her questions were not meant to be investigative, but rather for "officer safety." (Id. at 33).

SDDO Corsi testified that when the officers were escorting Sun into the home, they explained to him that they were going to accompany him into the residence "only to obtain the passport," to which Sun had no objection. (Id. at 27). SDDO Corsi did not initially accompany Sun into the home but was brought in when officers in the home with Sun wanted her to witness Sun's signing a consent to search form. (Id. at 9). SDDO Corsi explained that although Sun was not comfortable signing the standard ICE consent form, he was willing to sign a consent form he authored. (Id. at 9). SDDO Corsi also testified that she observed different components and gun paraphernalia "all over the kitchen." (Id. at 28). After signing the form, SDDO Corsi went back to her vehicle. (Id. at 29). Although the officers searched the detached garage to the residence, consent to search the garage was not specified on the consent to search form. (Id. at 31).

SDDO Farkas testified that he met Sun and SDDO Corsi at Sun's residence, which was located at 65634 Sheridan Drive in Williamsville, New York. (Dkt. 70 at 7-8, 30). SDDO Farkas introduced himself when he encountered Sun and asked if they were going to get the passport, to which Sun responded "yes." (Id. at 22). He did not recall Sun asking if he could get the passport himself, but noted that had Sun asked that question, "we wouldn't have done that anyway." (Id. at 21). Sun was not mirandized at this time. (Id. ). SDDO Farkas found Sun's consent to enter the home "based on us escorting [him] into the house." (Id. ). Inside the residence, SDDO Farkas observed "two large storage cases," or "pelican cases, which are used to store weapons or weapon parts, as well as small cardboard boxes on top of them, which clearly had weapons parts in them." (Id. at 9). SDDO Farkas testified that Sun was not mirandized prior to his observing the pelican cases, but he did mirandize him after seeing the pelican cases, as he "wanted to question him to being an alien out of status in possession ... of firearms." (Id. ). SDDO Farkas testified to the following as to Sun's Miranda rights:

It basically says that he doesn't have to answer our questions. He does it free—free and willing. He has the right to an attorney. If he can't afford one, one will be provided for him. And at the end, most importantly, we ask him, do you understand your rights. In which he stated, yes.

(Id. at 28).

SDDO Farkas asked Sun if he had firearms in his home, to which Sun replied that he did. (Id. at 10). SDDO Farkas then presented Sun with a blanket consent to search form that ICE utilizes; Sun did not feel comfortable consenting to the full search of his home, but he signed a consent form permitting the agents to search his residence for the firearms only. (Id. at 9-13, 25). SDDO...