This cause comes before the Court on Defendant Samuel Posa's Motion to Suppress Evidence. (Doc. 48). The Government opposes the motion. (Doc. 74). The Court held a hearing on this motion on June 4, 2012. As explained below, the motion is denied in part and granted in part.
On October 28, 2011, at approximately 7:20 a.m., DEA agents and Tampa Police Department officers arrived at Samuel Posa's ( (hereinafter "Posa") residence on Lake Shore Drive in Tampa with an arrest warrant. Agents surrounded the residence and attempted to call Posa by phone to secure a peaceful surrender. Posa's brother answered the phone on two occasions, and agents indicated the need for both the brother and Posa to come out of the house with their hands up. Agents also announced this demand by bull horn from outside of the residence. Within approximately five minutes, Posa and his brother exited the residence with their hands raised in the air. Posa was placed under arrest. A SWAT team entered the residence to perform a security sweep, and at some point, Ms. Jimenez, Posa's wife, exited the residence.
A. Statements after Posa was Handcuffed
DEA Special Agent Jonathan Ryckeley handcuffed Posa. Posa stated, "You're trying me," "It's too f--ing early for this," and "I haven't had time to wipe the cat s--t out of my eyes."
Agent Ryckeley informed Posa that he was under arrest for conspiracy to distribute oxycodone. Posa asked "Conspiracy?" Agent Ryckeley replied, "Yes, with Dr. Barton." Posa then stated that Dr. Barton paid for the prescriptions, that Posa gave half of the oxycodone back to Dr. Barton, that Posa was only doing what Dr. Barton told him to do, and that Posa's oxycodone dependancy was Dr. Barton's fault.
Agent Ryckeley asked Posa for permission to search his residence. Posa asked Agent Ryckeley why he wanted to search. Agent Ryckeley replied, "Let's say, what if I wanted to search for a kilo of cocaine?" Posa agreed he could search the residence if Posa could be present for the search and if Posa could smoke a cigarette. Agent Ryckeley agreed. Agent Ryckeley and Agent Corbett both testified that Posa gave voluntary consent to search his home in exchange for the right to be present for the search and to smoke a cigarette. Both agents were present for the conversation. DEA Agent Michael Pullen and DEA Agent Frank Caira, although not present when consent was given, both testified that they heard the announcement by Agent Ryckeley to stop the search when consent was later withdrawn by Posa. Posa's neighbor, Richard Froebel, testified that he heard Posa state, after being handcuffed, "F-- no you can't go in there, hell no." Mr. Froebel was approximately 50 yards away and had a car blocking his view.
C. Statements in Kitchen to Agent Gary Corbett
Agent Ryckeley seated Posa in the kitchen as the search began. Agent Ryckeley verbally provided Miranda*fn1 warnings to Posa at that time. Agent Corbett was present when Agent Ryckeley read the Miranda warnings to Posa. Agent Ryckeley then asked Posa if he wanted to talk, and Posa replied to Agent Ryckeley, "No I don't want to talk to you right now." Agent Ryckeley exited the kitchen, and Agent Corbett stayed with Posa in the kitchen. Posa asked Agent Corbett to feed his dog, and Agent Corbett obliged. Agent Corbett also provided two cigarettes to Posa and gave him a drink when Posa said he was thirsty. During his time in the kitchen with Agent Corbett, Posa looked down and stated that he did not understand why he was under arrest because he had not dealt with Dr. Barton in a year and a half. Agent Corbett then asked, "So that would mean the last time you dealt with him was late 2009, early 2010?"
Posa looked at Agent Corbett and replied, "[t]hat's right." Posa then looked at the floor again and said he told Dr. Barton he could not do this anymore, things were getting crazy.
D. Exchange with Brother James Posa
As Posa was in the kitchen with Agent Corbett, Posa's brother, James Posa, came into view of the kitchen. Posa said to his brother, "This whole thing is about Dr. Barton." James replied that he did not understand because Posa had not dealt with Dr. Barton in about a year and a half.
E. Recovery of Gun and Withdrawal of Consent
During the search, while Posa was in the kitchen, agents found a loaded gun in a bag on a night stand next to a bed in a bedroom. A piece of mail was located on the bed near the night stand with Posa's name on it. A bottle of over-the-counter drugs consistent with usage by a male was also in the bedroom.
After the gun was found, Posa informed Agent Corbett that he was done, that he wanted to go to the jail, and that he did not want the agents to search anymore. Agent Corbett relayed this information to Agent Ryckeley, who confirmed with Posa that he was withdrawing his consent to search. Agent Ryckeley called off the search. ...