Case against de-facto arrest

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA CRIM. NO. 13-10238-DPW

v.

DIAS KADYRBAYEV

DEFENDANT DIAS KADYRBAYEVS POST-SUPPRESSION HEARING MEMORANDUM OF LAW WITH PROPOSED FINDINGS OF FACT AND

CONCLUSIONS OF LAW

INTRODUCTION

[I]t is under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-65(2004)

Notwithstanding that the Supreme Court has never wavered from its position that

the forcible removal of a person from his home to transport him to a police station for

interrogation requires probable cause, the Government now asks this Court to rule that in

this case, the FBIs tactical removal of Dias Kadyrbayev was permissible because they

had reasonable suspicion to believe that Dzhohkar Tsarnaev might be in that house. The

Government also asks this Court to rule against Supreme Court and First Circuit law, and

hold that the arrest of a person within his home can be justified on exigent circumstances,

but again, premised only on reasonable suspicion that a terrorist was inside the home.

In truth, this case demands a more careful and measured approach because of the

temptation to invoke exceptions to the rule of law to justify more aggressive government

Case 1:13-cr-10238-DPW Document 365 Filed 08/13/14 Page 1 of 68

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intrusions. The exceptions permitted here become the rule of law tomorrow. The

Government clearly believes that the gravity of a terror investigation permits it to

dispense with probable cause, even for the most intrusive Fourth Amendment seizures

and searches, and that its burden of proof in a suppression hearing will be lessened by the

exigencies of the war on terror. Respectfully, they are wrong.

They are also incorrect with regard to the law on consent, and waiver, and the

Government failed to adduce sufficient facts to carry the burden of persuasion that was

on the Government, at all times, to meet. Finally, the Governments own evidence

demonstrates that the Governments arrest of Dias Kadyrbayev on suspicion of being

present in the United States in violation of his student status was a ruse to delay his

presentment and provide additional time to build their criminal case, a due process

violation recognized by the courts as the basis for suppression of the statement therein

obtained.

REQUEST FOR ORAL ARGUMENT PURSUANT TO RULE 7.1(D)

Oral argument is requested to address issues raised herein.

PROPOSED FINDINGS OF FACTS

Background

1. On April 15, 2013, at approximately 2:49, a terrorist attack in Boston resulted in

the deaths of three people and catastrophic injuries to scores of other bystanders at

the Boston Marathon. All members of the FBIs Joint Terrorism Task Force were

activated and participated in the subsequent investigation. 1:146; 159 (Walker).


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2. Dias Kadyrbayev (Dias) a foreign student attending UMass-Dartmouth through

the Navitas Program, was nineteen years old. He had been born and raised in

Kazakhstan, and spoke Russian as his primary language, then Kazakh, then

English. 4:187-88 (Dias); 2:172 (Azad); 2:19 (Walker).

The Arrest at 69 A Carriage Drive

3. On the morning of April 19, 2013, Dias Kadyrbayev spoke to friends, Vova, and

Sagr, who told him that law enforcement wanted to speak to him about his friend,

Dzhohkar Tsarnaev. 4:216-17 (Kadyrbayev). During the former of the two

conversations, around noon, Dias learned that law enforcement was actually at his

friends home as they spoke. Dias asked Vova to put the law enforcement agent

on the phone, and Dias identified himself and provided his address so that agents

could come talk to him. 4:216-217 (Kadyrbayev).

4. Dias remained in the apartment with his girlfriend, Bayan Kumiskali, and his

roommate, Azamat Tazahayakov expecting police to arrive within minutes. 4:218

(Kadyrbayev).

5. Shortly after noon, the JTTF team assembled for purposes of the Marathon

bombing investigation set up a perimeter of JTTF members from the Boston

police department to surround and conduct surveillance of the apartment at 69 A

Carriage Drive. 1:101 (Walker). Dias, his roommate, Azamat Tazhayakov, and

Bayan Kumiskali became aware of the presence of these vehicles, presuming that

they were law enforcement around three p.m. 4:217-218 (Kadyrbayev).

6. Over the next few hours, police made no contact by phone or otherwise with the

occupants. 4:217-218 (Kadyrbayev).


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7. Close to five p.m. Dias and his girlfriend, Bayan, noticed that the apartment was

now completely surrounded by what appeared to be heavily armed SWAT team

members and other law enforcement officers. There were more cars, and a tactical

vehicle. 4: 219 (Kadyrbayev)

8. Special Agent John Walker testified that law enforcement had targeted the 69

Carriage Drive apartment as a possible location for Jahar Tsarnaev that morning.

Tsarnaev was known to law enforcement that morning as the second suspect in

the Marathon bombing and the firefight with police late the evening before, in

which Tamerlan was left dead.

9. Law enforcement obtained information that Tsarnaev had four cellphones

subscribed to him, and that the address used for the bill was 69 Carriage Drive,

very early that morning, possibly around 6.a.m. 1:95,147 (Walker). The FBI then

gathered every bit of data and toll records from AT&T. 1:149 (Walker). There

was no evidence that Tsarnaev received any other mail at that address, nor that he

stayed in the apartment or used it as a residence. Further, Walker does not believe

that Dias name was linked to any of the phones. (1:149).

10. One of the phones subscribed to Tsarnaev showed connectivity with Dzhohkar

Tsarnaev a few hours before the bombing on April 15. That same phone allegedly

transmitted a message to Russia, which had bounced off a tower a mile from the

UMass Dartmouth Campus at around 10:20 a.m. Friday morning. 1: 96-97

(Walker). There is no testimony, nor any evidence, that this phone had any

connectivity then, or at any other time, with Tamerlan Tsarnaev or any other

members of that family.


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11. Agent Walker later mapped it out after the fact that the location of the cell

tower from the defendants apartments as about 900 meters away. 1:97, L. 20-22

(Walker).1

12. Massachusetts State Police provided information to the FBI that on April 17 and

April 18 three Skype calls were made between Dzhohkar and Tamerlan Tsarnaev

from an Internet protocol address resolving to Dias Kadyrbayev at 69 A Carriage

Drive. 1:100, L. 13-19 (Walker).

13. The FBI also learned that at least one of the phones, that ending with suffix 9049,

was emitting a signal from the 69 Carriage Drive Apartment building. This was

not the phone which the FBI had determined displayed connectivity with

Tamerlan Tsarnaev. (1:95-96).

14. On this basis, the FBI set up a perimeter around apartment in the early afternoon.

1:101, L. 3-20 (Walker). The first surveillance was set up shortly before noon.

1:162, L 19 (Walker). The purpose of the perimeter was to ensure that Tsarnaev

did not flee the area, and that the people within the apartment did not leave

without the FBI having an opportunity to speak with them. 1:163, L. 19-24

(Walker).

15. There was no evidence adduced at the hearing corroborating the suspicion that

Tsarnaev was presently in the apartment on April 19 beyond the signal of one of

the four phones subscribed to him. That phone was not the phone which had

contact with Tamerlan Tsarnaev, nor with any other Tsarnaev family member.

1 The Government presents the information that the tower distance was within 900 meters of the apartment

complex as information possessed by law enforcement at the time the decision was made to enter the apartment when in fact, the evidence does not support this conclusion. Similarly, the Government posits that Tsarnaev received mail at the 69 Carriage Street address when in fact, the only evidence is that the AT & T bill for these four phones was sent to this address.


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(1:95-96). Surveillance, which had begun before noon and continued throughout

the day, did not confirm his presence.

16. One phone was significant to Agent Walker immediately because it showed

significant connectivity with Tamerlan Tsarnaev, especially around the time of

the bombings. 1:95, L. 18-22 (Walker). This was not the phone (identified as

phone 2) emitting from the apartment, nor connected to the area of the Carriage

Drive Apartments by the use of the cell tower within a mile of that apartment,

however. 1:95; L.23-25 (Walker).

17. Prior to receiving the information regarding the presence of a phone subscribed to

Tsarnaev located and active within the apartment, the FBI has similar information

suggesting that another of the phones subscribed to Tsarnaev was active at two

locations about a quarter of a mile away within the entire apartment complex.

1:109, 24-25; 1:110, L 1-7 (Walker).

18. The FBIs investigation did not uncover any other evidence, at least none that was

adduced at the hearing, which further connected Dias Kadyrbayev to any criminal

activity. Witnesses interviewed that morning confirmed that the two were friends,

and that Tsarnaev visited the Carriage Drive apartment. 1:99, L. 4-9 (Walker). As

early as 9 a.m. that morning, that the State Department had identified Dias

through a logical Internet search and suggested that he was closely associated

with Tsarnaev; they also informed Agent Walker that a photo of the two of them

had been removed from the internet at some point. 1:99-100 (Walker).


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19. The FBI also knew at this time that Dias lived at the 69A Carriage Drive

apartment with someone called Azamat, and that they two were Kazakhstan

nationals. 1:98, L. 22-24 (Walker).

20. SA Walker did not attempt to obtain a warrant to search the apartment 1;155, L.

25; 1:156, L. 6-17 (Walker), though there was certainly hours from the time the

FBI first made the connection between the apartment address and phones

subscribed to Tsarnaev (6 am); the use of one of the phones to send a message to

Russia that day (information received at noon); and the confirmation that one of

the subscribed phones was active inside the apartment and that Tsarnaev was

friendly with Dias Kadyrbayev, a resident of the 69 A apartment. (by 1:00 pm). 1:

153 (Walker; infra).

21. The Government adduced no evidence that the FBI had an arrest warrant for

Tsarnaev or that one had been sought. The first surveillance had started shortly

before noon. 1:162, L. 19 (Walker). No testimony was offered to explain why,

when law enforcement made contact with Dias around noon, no effort was made

to speak to him or to have him exit the apartment on request.

22. SA Walker testified that the FBI Director made the decision to execute an exigent

warrantless search. 1:102, L 21-25 (Walker). There was no evidence indicating,

beyond the FBIs belief that Tsarnaev was in the apartment, that the apartment

contained bombs or bomb making material produced at the hearing. Despite the

claims of exigency, based on a danger to the surrounding neighbors and the public

from both the presence of a felon and the possibility of bombs or explosives on

the premises, there was no effort to move or evacuate the neighbors around 69 A


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Carriage Drive or the surrounding buildings. 1:164, L. 11-19 (Walker) even

though the apartment building itself had two apartments on each floor, and was

located within a good sized apartment complex that was heavily populated. 1:165

(Walker).

23. HRT and Agent Walker briefed at the library at Dartmouth, and HRT briefed with

local SWAT teams that integrated into their team to take perimeter duty, before

Walker and HRT deployed to the apartment complex shortly before 5 p.m. 1:104.

L. 12-18 (Walker).

24. In addition to HRT members, the Massachusetts State Police SWAT team (or the

MSP STOP team) was at 69 Carriage Drive, as well as law enforcement agents

who were part of the local JTTF. 2:5 (Walker). There were approximately 50 or

60 or even more tactical operators, and on the periphery, additional uniformed

police officers from New Bedford, and ranking officers from the Rhode Island

State Police. 2:6, L. 1-11; 1:166, L. 6-9 (Walker).

25. Photographs, introduced into evidence, establish that HRT members were clad in

military style uniforms, with ballistic helmets, night vision goggles, and long arm

semi-automatic weapons. (Exhibits 2A, B, C).

26. The JTTF team assembled in force outside that day was wearing clothing

identifying them as law enforcement: either a police uniform, SWAT uniform, the

HRT camouflage, or jackets bearing FBI or other agency insignia. All were

armed, and weapons were pointed at the apartment and the occupants inside.

Exhibits 2A, B, C; 2:6, 32-33 (Walker); 4:218-19 (Kadyrbayev).


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27. The HRT team focused laser-scoped long weapons on the occupants inside the

apartment which meant that a laser beam would appear on the target. 2:10

(Walker); 4:219-20 (Kadyrbayev). Dias and Bayan saw these red laser dots

appear on their heads and torsos, indicating that they might be shot at any moment

within the apartment. 4:219-220 (Kadyrbayev). Dias was terrified, Bayan was

crying. 2:220 (Kadyrbayev; Affidavit).

28. Within the apartment, Dias and Azamat put up their arms. 4:219-220,

(Kadyrbayev). HRT used a loudspeaker to demand that Jahar Tsarnaev exit, and

then, ordered the occupants to exit. 2:14 (Walker); 4:220 (Kadyrbayev). Dias was

ordered to come out slowly, to take off his shirt and lower his pants, and to walk

backwards with his hands on top of his head, before kneeling, all standard

operating procedure for the HRT team call out. 2:14-15 (Walker); 4:220-22

(Kadyrbayev).

29. Dias was then handcuffed with plastic flexi cuffs behind his back. 4:221-222

(Kadyrbayev). He remained shirtless from that point on, from 5 pm that

afternoon until nearly twelve hours later, when Walker returned Dias to the

apartment, and he pointed out the shirt still lying in the grass outside the

apartment. 2:16 (Walker).

30. It is not standard procedure to have a witness invited to assist law enforcement

to remain shirtless for twelve hours, and the only other time one of the

Government witness recalled such an instance involved an interview conducted

in a persons home. 2:175 (Azad); 3:45 (Schiliro).


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31. Dias, Bayan and Azamat were placed separately in the back of three different

police cars. Dias was still cuffed behind his back. The men were still shirtless.

2:20, L. 6-11 (Walker); 4:224 (Kadyrbayev).

32. Arrestees are normally not placed in vehicles with their hands cuffed in the back,

as this particular method of securing a person is painful when in a seated position.

2:206, L. 3-7; 208 (Kelly).

33. There was no testimony that anyone told Dias that he was not under arrest.

34. Agent Walker went from car to car and questioned the three, without first

Mirandizing them, at approximately 5:15 for Bayan, 5:20 for Azamat, and 5:25

for Dias. 2:20, L. 16-22 (Walker); 4:224-226 (Kadyrbayev).

35. Dias testified, consistent with his affidavit, that Agent Walker scared him when he

approached Dias in the back of the car and began questioning him without

Miranda, using profanity and speaking with great intensity. 4:225; (Motion to

Suppress, Affidavit). Agent Walker confirmed that he spoke in a very firm voice,

and was stern although he does not recall using profanity.(1:115; 2:71, Walker).

He told Dias that his friends life was over but that his did not need to be, or

something to that effect. 1:115; 2:71 (Walker). He demanded to know where

Jahar was. (Id.). He asked Dias whether there was anything that would present a

danger like a bomb or explosives to his men, who were entering the apartment.

Dias told him that there were none, that Tsarnaev was not there and that he did

not know where he was. 1:114 (Walker). Agent Walker perceived these

statements as credible. (Id.).


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36. By 6 p.m. HRT had confirmed that Tsarnaev was not there. 1:119 (Walker).

Walker wanted to continue talking with Dias, and he suggested that they relocate

to MSP barracks, citing at the hearing the desire for a more discreet comfortable

setting because there was a gathering crowd of media. 1:119 (Walker). He did not

testify that safety concerns dictated the relocation, nor did he testify that in

suggesting to Dias that they should talk at MSP barracks, he took care to tell Dias

that the move was premised on safety concerns and that Dias was not under arrest.

Rather, Walker testified that he believed that Dias would prefer not to remain in

that location as press were appearing and there was a large crowd of people

gathering and that all three students seemed eager to agree. 1:119. Walker

testified that had Dias not consented to the transport he would have gotten

authorization to arrest him for illegal presence because he wanted to talk to him.

1:40-41 (Walker).

37. Dias was never asked whether he would be willing to go to a discreet and

comfortable location to answer more questions. 5:12 (Kadyrbayev).

38. Dias was not told that he was not under arrest. He was still cuffed, quite

uncomfortably, with very tight flexi cuffs behind him, and he was still in the back

of the car where he had been placed when Walker suggested that they go to

another location, which is the police barracks. (Infra; Walker).

39. There is no evidence that Dias was offered the opportunity to make a phone call

to alert family or friends where he is going, or to arrange transportation. There is

no evidence that he was offered, or given the opportunity, to leave the car to

retrieve his shirt, nor was one provided to him from the apartment. Walker


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testified that Dias was not charged, was just a source of information, a witness,

and that at all times he was free to leave, despite being cuffed, shirtless, in the

back of a car guarded by an armed officer. 1:38-40 (Walker).

40. Walker was ware when questioning the boys after the extraction that they are

cuffed 2:20 (Walker) and confirmed that Dias was cuffed and shirtless when he

asked him to go to a more comfortable, discreet setting. 2:26 (Walker). Dias was

then moved to marked police car, with a shield separating front and back, and

with rear doors that do not open from inside. 2:27 (Walker): 4:227-28

(Kadyrbayev). The transport to MSP Barracks began around 6:20, over an hour

and half after the occupants were ordered out of their home. 2:28 (Walker); 4:227-

28(Kadyrbayev).

41. En route to the police barracks, the car was turned around at Agent Walkers

direction so that he could obtain consent from Dias to search the apartment. 4:228

(Kadyrbayev).

42. Dias was still inside the police car, in the rear seat, cuffed when Walker

approached to obtain consent. 2:34 (Walker). Walker did not remove him from

the car, nor did he remove his cuffs. 4:229 (Kadyrbayev); 2:34 (Walker).

43. In fact, the cuffs were not removed until after Dias had agreed to the search, and

only then because Walker needed Dias to sign the form. 2:35. 79 (Walker).

Walker clarified to the Court that he could not recall a discussion about New

Bedfords safety protocols for transport, but that it was clear to him, based on

what the officer had just witnessed, that the New Bedford police officer would

have objected to transporting someone who had just been pulled out of a house by


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HRT, so he simply acquiesced to the handcuffs. 2:81 (Walker). Walker never

questioned or objected to the use of cuffs when he initially asked Dias if he would

agree to the relocation, or when Dias was put in the car for transport still cuffed.

Walker also knew Dias had been in restraints from the time HRT called him out

of the house, and that Dias was going to be transported in cuffs to MSP barracks

and did not then object or discuss the use of restraints with any officer. 2:89

(Walker).

44. Walker did not Mirandize Dias, nor did he tell Dias that he was not under arrest

before asking for consent. SA Walker produced an FBI consent to search form

and read it to Dias. 2: 34-35.

45. SA Walker provided Dias with the FBI search consent to search form to read and

told him that they needed to check his apartment for safety, because Jahar may

have left dangerous items. 4:230-231 (Kadyrbayev).

46. Dias again acceded believing that he did not have any choice. He just wanted to

sign after his experience with Walker outside his house and his scary attitude.

He could not sign the document, however, because he was still cuffed behind his

back. 4:231 (Kadyrbayev).

47. The plastic flexi cuffs had to be cut. Agent Walker did not possess anything

which could be used to cut the flexi cuffs, and had to search for something sharp

before cutting off the cuffs while Dias remained in the back seat. 4:229

(Kadyrbayev); 2:35 (Walker).

48. Dias heard the officer ask Walker, Hes not under arrest so Im not going to cuff

him right? Dias didnt hear what Walker said but the officer then put cuffs back


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on in front and Dias proceeded to MSP barracks cuffed in front. 4:232-233

(Kadyrbayev).

49. At the barracks, Dias, still in cuffs, remained in the back of the car in the parking

lot for over two hours. 4:234 (Kadyrbayev).

50. Dias was cold, clad only in shorts, and asked the police officer in the front of the

car to turn up the heat. 4:236-237 (Kadyrbayev).

51. While waiting in the vehicle, Dias learned from the radio that police had finally

located Jahar in Watertown. He asked the police officer up front whether he

would be released now that they found Jahar. The officer told him that he did not

know. 4:234-235 (Kadyrbayev); 2:18, 35, 50 (Schiliro).

52. Dias did not believe he could just leave after what happened at the house with the

guns and intense questioning, and he never asked to leave because it was clear he

couldnt. 4:236 (Kadyrbayev).

53. Finally, Dias was removed from the car and escorted into the building by multiple

law enforcement officers. His cuffs were still on. 4:237 (Kadyrbayev).

54. At the point that he is led into police barracks, Dias had been in custody for four

hours.

55. The cuffs were not removed until Dias was inside the building. He held up arms

up to have them taken off but was told he had to wait and they came off only after

he was secured in a room beyond the public area. Agents asked if he needed to go

to the bathroom. 4:237-238 (Kadyrbayev).


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56. Dias was not permitted to use the bathroom on his own. He was led to the

bathroom door, which Agent Schiliro kept propped open once Dias was inside.

4:239 (Kadyrbayev); 3:40 (Schiliro).

57. When he was finished, Dias was then escorted to the interior of police barracks,

through a secure door that required an officer inside the reception area to first

buzz open. The testimony was unclear whether this door was locked from both the

inside and outside requiring a buzzer for egress and ingress. 3:38 (Schiliro); 2:165

(Azad)

The Waiver Massachusetts State Police Barracks

58. Agent Azad testified that he told Dias that they wanted to speak to him, that he

wasnt under arrest, and that he would need to sign a form for them. (2:128).

59. That form, (Exhibit 4, 2:129) appears to be a standard FBI form, and it bears

signatures and times indicating that the form was presented at 9:08 p.m. and

signed at 9:14 p.m..

60. Agent Schiliro read from start to finish, without stopping after each right. (2:130;

3:22, L.21-24) He did not explain each right or confirm after reading each right

that Dias understood. (Id.)

61. Agent Azad testified that he also provided some ground rules to Dias that

would go along with the interview should Dias sign the waiver; it was not clear

whether this preceded or followed Agent Schiliros reading. (2:130).

62. Dias asked if he needed a lawyer. (3:22, L.24; 3:44, L. 22; 3:45, L. 7-8.)(4:240).

He was told that he was not under arrest that he was just helping out and that he

did not need a lawyer. 2:240-1 (Kadyrbayev).


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63. Agent Azad testified that he would not be able to give him any legal advice.

2:130 (Azad).

64. Agent Schiliro did not ask Dias if he understood the rights. (3:23).

65. Agent Schiliro testified after he gave Dias the form, Dias appeared to read the

form, and that he agreed to speak and signed the Advice of Rights (3:23). He did

not confirm that Dias had in fact read each right, nor did he ask Dias if he

understood his rights then. (3:45). He only asked Dias again, if he had any

questions. (Id.).

66. Dias did not understand that he had the right to refuse to speak with the Agents

and was never informed of this right. 5:15 (Kadyrbayev).

67. Dias conversed with the agents in English. Dias English proficiency level was

Low Intermediate on the ACTFL Proficiency Guidelines at the time of the

interrogation. 4:24 (Pavlenko). This corresponds generally to Dias combined

score on his IELTS testing was 5.5, indicating that he should not have been

enrolled in any academic or linguistically demanding language classes, and which

qualified him only for low level ESL, or English as a Second Language classes,

and would have precluded him from performing in an academic setting where

only English was spoken. 4:17, 19 (Pavlenko).

68. Someone at the Intermediate level of proficiency would be able to participate in a

wide range of conversational exchanges, and exchange information on topics that

are familiar, using high frequency words and relatively simple structures. (4:25).

Low Intermediate users can appear proficient, especially if they are younger

individuals using colloquial English. 4:25 (Pavlenko).


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69. The Advice of Rights form corresponds in structural and lexical complexity to

Distinguished on the ACTFL Guidelines. 4:33 (Pavlenko). A Distinguished

level of proficiency enables a person to process information that is dense, highly

abstract, contains low-frequency words, and relies on cultural knowledge and

framework. (4:34).

70. Dias did not have the necessary level of language proficiency to understand the

Miranda warning; his proficiency was level Low Intermediate and the level of

proficiency required to comprehend the Advice of Rights is Distinguished.

(4:34-35).

71.The agents encountered objective evidence of Dias proficiency level. Dias had

trouble with certain words, and could not find the words for certain things in his

conversation with agents. (2:181). Agent Azad would, at times, try and work

around Dias lack of ability to communicate certain words, and would suggest

words to him. (2:181).

72.When attempting to work around these difficulties, Dias used drawings, and hand

gestures, and noises, such as when describing fireworks. 2:185, 186, 189 (Azad).

(Id). Words like dumpster, fireworks and fuse could have been examples of

words Azad or Schiliro used in the 302 after discussion with Dias about what he

meant, as opposed to repeating words that Dias himself used. 2:190 (Azad).

73.During the interrogation, Dias mentioned that he was cold because he was still

shirtless, but none was provided. 4:242 (Kadyrbayev). Dias was also exhausted

from lack of sleep, and visibly nodded off putting his head on the table and later

asking if he could sleep. 2:175 (Azad).


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74.Dias repeatedly asked if he could see Bayan, but was refused to see or speak with

her.

75.Dias had no phone, wallet, or any means to independently leave the barracks.

2:86 (Walker).

76.Dias did not believe that he could leave as he was closely monitored at all times,

and could not leave the room. 4:254 (Kadyrbayev).

77.Dias was questioned from roughly 9:14 pm until shortly after midnight.

78.According to Azad, the interview lasted approximately three-and-a-half (3 )

hours after the advisement process and concluded around 12:30a.m., whereas

Dias recalls the interview concluding closer to 1:00a.m., which Agent Schiliro

does not dispute. 2:135, 139 (Azad); 3:23-24 (Schiliro); 4:251 (Kadyrbayev).

During the interview, after being advised of safety concerns by the agents,

Kadyrbayev consented to the search of his vehicle, a BMW, his Macbook Air

laptop, and an external hard drive. See Exs. 5 & 6; 2:134, 137-138 (Azad); 4:250

(Kadyrbayev); 3:26-27 (Schiliro).

79.During this interrogation, Dias was presented with and asked to sign a consent

form for a search of his computer and car; again, he was told that agents had to

make sure that Jahar did not leave anything dangerous behind.

80.Even after the interrogation, Dias was not permitted to leave. Agents were

searching for the backpack. When agents returned, Walker decided that he had to

release Dias even though he had probable cause for arrest for obstruction because

he had not yet heard back from the prosecutors and he did not want to expose his

agents. 2:82 (Walker).


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81.After more than six (6) hours in custody, during which the agents were trying to

obtain permission to charge the defendants. 2:58-59, (Walker). Azamat remarked

to Walker that he feels like they are being held against their will. 1:133, (Walker).

The defendants were driven home around 5:00a.m. 2:74 (Walker); 4:258

(Kadyrbayev).

82.Dias was transported back to his apartment around 4:30 am.

83.He was not cuffed.

84.Dias had been in custody for almost twelve hours at this point.

85.Agents returned him to the apartment and went inside to conduct a safety

check.

86.While in the apartment, agents retrieved an ashtray and hat.

The Government Returns to Carriage Drive with Immigration Agents

87.After Dias was returned, surveillance of the home was set up by the FBI.

88.HSI and the FBI were aware that Dias was out of status. As a nonimmigrant here

on a student visa, he was required to maintain his status as a student. HSI agent

Valentine was told that he did not need to address Dias possible overstay on the

afternoon of Friday, April 18, because it was all set, just do what youre doing.

3:208 (Valentine). The next day, on the morning of the 20th, HSI agents were

notified to convene for purposes of arresting Dias. Id; 2:202 (Kelly).

89.Agent Walker had been instructed to meet up with the agents and the FBI

surveillance team. 2:64 (Walker). He advised his supervisor that surveillance had

observed two males leaving the apartment, and that MST (FBI surveillance)

would put them in place and would arrest them in the region. (2:66); FBI and


20

HSI were fully integrated. 2:66 (Walker).

90.HSI Agents met at the JFK building, and then later, convened at a local Dunkin

Donuts for an overview of how the arrest would be effected, a meeting at which

Agent Walker was present. 2:64 (Walker). Walker also communicated with his

supervisor regarding his presence at the arrest planned for later that day that It

will be fine because theyll probably think that Im just there for a follow-up from

yesterdays interview. (2:66).

91.Agent Valentine obtained consent to enter by asking an occupant who came to the

back door if he could come in because of the presence of media. (2:210).

Whoever that was let Valentine in and he asked if they would permit his people

out front in as well because agents just had to ask some questions. (2:211).

92.The HSI agents were wore jackets and/or bullet proof vests with police markings,

and carried guns and cuffs. 2:200 (Kelly); 2:218 (Wiroll). Agents knew that Dias

was alleged to be an associate of Tsarnaev. (Id.).

93.Dias, Azamat, Bayan and Dias mother were all told to sit on the couch. 2:203

(Kelly); 2:213 (Valentine). They were not permitted to get up to obtain I

dentification but instructed to tell agents where to find the necessary documents.

94.Before Dias could be arrested, HSI agents had to confirm whether or not they

were in status. Even if SEVIS states that the person is not in status, it is possible

that the persons situation has changed, that the person has filed for a petition or

has some other legal basis for remaining in the country. 2:204 (Kelly). HSI agents

do not arrest on first encounter, because it is not certain that there is a basis for

arrest until there are follow up questions and checks to confirm the SEVIS status.


21

2:204 (Kelly); 2:209 (Valentine)

95.Dias was arrested administratively after about forty minutes and placed in

shackles before being transported. 2:215 (Valentine); 3:59 (Wiroll). No one told

Dias that he was under arrest, only that he had to come back and sort out his status.

2:216 (Valentine); 3:61,78 (Wiroll)

96.Dias was therefore surprised he was handcuffed. (Id.). Wiroll told him cuffs were

necessary for transport, but he was cuffed in front, with shackles, because back-

cuffing is extremely uncomfortable and not appropriate if someone is being

seated. 2:215 (Valentine); 2:208 (Kelly); 3:61 (Wiroll).

97.The administrative arrest warrant was issued at 10:00 p.m., that night, after Dias

had been transported to HSI offices.

98.Wiroll placed Dias in a room and started paperwork. He had not processed Dias

when FBI agents were provided access to Dias around or shortly after 5:00 p.m..

(3:62).

99.Azad and FBI Agent Timothy Quinn (Quinn) interviewed Dias again at the Tip

ONeil Federal Building on April 20, 2013, 2:151 (Azad); 3:62 (Wiroll). During

that interview, Azad handed Dias the form, indicated it was the same one as

yesterday, 4:271 (Kadyrbayev), and then Quinn reviewed the Miranda advisement

form and it was signed at 19:11. 2:152-153, (Azad); 3:8 (Quinn); 4:273

(Kadyrbayev). Prior to reviewing the form, however, Dias again asked if he

needed a lawyer and, again, Azad told Dias that he was not in their custody.

4:272, (Kadyrbayev). Dias was interviewed for 30-40 minutes. 4:273

(Kadyrbayev).


22

100.Wiroll himself did not speak with Dias until shortly after midnight the following

day. (3:63).

101.During the interview, the consulate officer was present. 3:63 (Wiroll).

102.Wiroll began the meeting with reading a Miranda card as well as the advice of

rights in the Notice to Appear. (3:66).

103.Wiroll testified that the counsulate officer, Yerlan Kubahev, translated

immigration documents for Dias in his native language. 3:74 (Wiroll, Exhibit 9).

The Consulate official translated documents, and provided Russian interpretation

to Dias. 3:75 (Wiroll).

104.During their interactions, HIS agents utilized a translator on two separate

occasions. First, on April 20th, the Consular official translated and again when the

documents were re-served on April 23rd in Dias native Russian language. 3:75

92, (Wiroll); 4:274-275 (Kadyrbayev).

105.Agent Wiroll had been given two pages of a draft 302 by the FBI agents from

the previous days interview of Dias. (3:80-81). Wiroll admitted that in the six

years he had been at HSI, picking up students for potential violations, this was the

first time FBI shared information in this fashion; it was not the usual practice.

(3:81-82). His job with regard to this arrest was to confirm that there was a

violation of the F1 Student visa. (3:83 Wiroll). The information in the draft 302

had nothing to do with a student visa violation. (3:82-83). According to him, the

information from the draft 302 was nevertheless included on the Notice to Appear

as background information about how I encountered the individual and how

they are out of status. (3:83).


23

PROPOSED CONCLUSIONS OF LAW:

FIRST PROPOSED CONCLUSION

DIAS KADYRBAYEV WAS ILLEGALLY ARRESTED ON APRIL 19, 2013, AND THE SEARCH OF HIS HOME WAS SIMILARLY UNSUPPORTED BY PROBABLE CAUSE, OR TRUE EXIGENT

CIRCUMSTANCES

The Government asks this Court to do what the Supreme Court has never done,

which is to apply the less onerous reasonable suspicion standard of Terry v. Ohio, 392

U.S. 1 (1968) to the warrantless entry of a home to conduct a search and to seize Dias

Kadyrbayev without probable cause. It does so, perhaps believing that the significance of

the crimes being investigated unburdens them of the Fourth Amendments requirements,

even when the intrusion is made in the home. However, the forcible removal of a person

from his home, and the transportation of this person for interrogation at a police station,

by definition is not the kind of minimal intrusion that Terrys balancing test

contemplates, and such seizures and searches within the home must rest on probable

cause.

Indeed, the Governments argument has been made, and rejected, by the Supreme

Court on multiple occasions. See, e.g. Dunaway v. New York, 442 U.S. 200, 212 (1979)

(rejecting application of Terry and reasonable suspicion standard to removal of suspect

from a residence for transport to a police station for questioning, and requiring probable

cause); Hayes v. Florida, 470 U.S. 813, 817 (1985) ( recognizing that forcible removal of

a person from his home, for transport to a police station for even a brief investigatory

detention requires probable cause, not reasonable suspicion); Kaupp v. Texas, 538 U.S.

626, 630 (2003) (forcible removal of 17 year old suspect from his home, without

probable cause or warrant, for interrogation at a police station violated the Fourth


24

Amendment). As the Supreme Court observed in Kaupp, [a]lthough certain seizures

may be justified on something less than probable cause, see, e.g., Terry v. Ohio.we

have never sustained against Fourth Amendment challenge the involuntary removal

of a suspect from his home to a police station and his detention there for investigative

purposesabsent probable cause or judicial authorization. Id. at 630, quoting Hayes,

supra, 470 at 815 (emphasis added).

A. The Search and Seizure Occurred In the Home, not Outside, and was One Continuous Fourth Amendment Violation

In an attempt to avoid the inevitable conclusion that forcible removal from the

home for interrogation can never rest on reasonable suspicion, the Governments Brief

and Argument focuses on the stop outside the Carriage Drive apartment, after Dias and

the others emerge from their apartment at gunpoint, surrounded by heavily armed tactical

operators. It does so because a warrantless search and seizure in the house requires the

Government to demonstrate probable cause. Payton v. New York, 455 U.S. 573 (1980)

(searches and seizures in home require probable cause). This it cannot do.

The Government concedes that at the time of the call-out, there was only

reasonable suspicion, as the record does not support a finding of probable cause to

believe that Tsarnaev was located within the home at that time, or to believe that Dias

Kadyrbayev had committed a felony. The Government has further asserted during the

hearing that the FBI always possessed probable cause to arrest Dias because his student

visa had been canceled, arguing that illegal presence was a basis for arrest, perhaps

hoping for the inference that his status would also provide a basis for entering the home.

Even assuming law enforcement had confirmed that Dias was out of status at that


25

point, illegal presence is not a crime as the Supreme Court itself has recently held.

Arizona v. United States, __ U.S.__, 132 S.Ct. 2492, 2505 (2012), citing, INS v. Lopez-

Mendoza, 468 U.S. 1032 (1984); see also, Martinez-Medina v. Holder, 673 F.3d 1029,

1036 (9th Cir. 2011) (Nor is there any other federal criminal statute making unlawful

presence in the United States, alone, a federal crime...) Gonzales v. City of Peoria, 722

F.2d 468, 476-77 (9th Cir. 1983) (illegal presence is only a civil violation.), overruled

on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037(9th Cir.1999). In fact,

the Supreme Court seems to have obviated the Governments argument that Dias student

visa problems authorized the police to search his home, or to arrest him, observing in

Arizona that if the police stop someone based on nothing more than possible

removability, the usual predicate for an arrest, meaning probable cause, is absent. Id.; see

also, Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 973(D.Ariz. 2011) (actual

knowledge...that an alien is illegally present is not sufficient to form a reasonable belief

that he has violated federal criminal immigration law).

The issue before the Court is thus not whether Dias detention constitutes a

permissible investigatory stop because by definition, it is only[w]hen the nature and

extent of the detention are minimally intrusive of the individuals Fourth Amendment

interests, [that] the opposing law enforcement interests can support a seizure based on

less than probable cause. United States v. Place, 462 U.S. 696, 703 (1983) (emphasis

added), citing Terry v. Ohio, 392 U.S. at 34. Dias forcible extraction from his home,

the circumstances of his detention at the scene and his transport to police barracks for

questioning is far from a minimal intrusion. The Terry calculus, which takes into

account both the nature of the privacy interest and its quality, simply cannot be applied


26

where police have made a warrantless entry and seized a person in his home where a

societally sanctioned expectations of privacy are at their strongest. See Lalonde v. Cty

of Riverside, 204 F.3d 947 (9th Cir. 2000) citing Arizona v. Hicks, 480 U.S. 321, 327-

328 (1987) (holding that probable cause is necessary for dwelling place searches as well

as seizures where officer within home searched stereo in plain view after lawful exigent

entry). Understandably, the Supreme Court has defined a minimally intrusive seizure as

one that occurs in public, and is brief. United States v. Winsor, 846 F.2d 1569, (9th

Cir.1988), citing Terry v. Ohio, supra; United States v. Hensley, 469 U.S. 221, 229

(1985).

The Governments position is that the search here was HRTs warrantless

sweep of the home after Dias was called out, and that the seizure occurred when he was

taken into custody, is not supported by the facts or law. Rather, the Fourth Amendment

inquiry begins when the HRT/JTTF team assembles outside the apartment building. The

search is the HRT call-out which compelled the occupants to reveal their presence and

identity. The seizure is the moment that Dias submitted to the show of authority and force

of the tactical team assembled outside and targeted him inside with laser scoped rifles.

See California v. Hodari, 499 U.S. 621, 626 (1981) (arrest requires either physical force

or a submission to authority); United States v. Smith, 423 F.3d 25, 28 (1st Cir. 2005)

(acknowledging that seizure can occur without physical restraint where coercion requires

compliance). Under the circumstances presented here, a reasonable person would not

feel free to leave, decline the officers requests, or otherwise terminate the

encounter. Florida v. Bostick, 501 U.S. 429, 435 (1991), quoting Michigan v.

Chesternut, 486 U.S. 567, 574 (1988).


27

If there could be any doubts, a summary of the facts will dispel them. Agent

Walker confirmed that a large tactical force of over fifty HRT and SWAT team members

along with additional local and state police officers and FBI agents established a

perimeter surrounding Dias apartment, hardening the soft perimeter in place since

sometime around noon that day. These operators were outfitted in tactical gear, which

included ballistic helmets, night vision goggles, bullet proof vests and semi-automatic

long arm weapons. (2:6, Walker); (4:220, Kadyrbayev). Exhibits 2A, B, and C

confirmed the visual appearance of the SWAT/HRT members, described by Dias in his

affidavit and later by Agent Walker. (1:166, 2:32, Walker; 4:219-20, Kadyrbayev). In

addition to the presence of multiple armed law enforcement officers and the tactical

force, there were numerous police vehicles, unmarked SUVs, and an armored tactical

vehicle outside the apartment building. (1:166, 2:6, Walker). There was no possibility of

egress or flight.

In addition to this display of authority, the occupants of the apartment building

also faced another significant threat. The tactical team aimed the laser scopes on their

rifles at Dias and Bayan inside the apartment, which resulted in visible red laser dots

appearing where the weapon is pointed. (2:11, Walker; 4:220, Kadyrbayev). Just as these

red laser dots were apparent to the operators outside the apartment, they were also

apparent to the occupants, who observed the dots on each others heads and torsos. (Id).

Aware that they were being targeted, and that the laser sighting was the equivalent of

being in the crosshairs of a semi-automatic weapon within their own home, Dias was

justifiably terrified and afraid to move. Bayan began to cry. Azamat, and then Dias and

Bayan put their hands in the air.(4:219-20, Kadybayev). The tactical operators outside


28

screamed at the occupants to keep still and not to move; Dias was afraid that they might

shoot at any moment, as it was raining and dark that day, so he tried to be still. (4:220,

Kadyrbayev).

The operators ordered Jahar out of the apartment, with words to the effect that he

was surrounded, and to exit and no one would get hurt. (2:12, Walker; 4:221-22,

Kadyrbayev). Then the operators ordered out the occupants using a bullhorn, or

loudspeaker one by one. ( Id.; 1:221, Kadyrbayev; 2:14,Walker). They complied,

following each and every instruction. Dias feared that at any moment, he could be shot.

(4:220, Kadyrbayev). Dias testified that he was forced to take his shirt off, drop his

pants, and he was brought to the ground on his knees so that he could be cuffed, as

questions were shouted at him. (4:222-23, Kadyrbayev).

The terrifying display of overwhelming force outside the apartment, the targeting

of its occupants, and the command to exit over a loudspeaker would compel any

reasonable person, in similar circumstances, to believe that he was not at liberty to

disregard the police. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (citing, as

examples, the threatening presence of several officers, the display of a weapon by an

officer, some physical touching of the citizen or the use of language or tone of voice

indicating that compliance with the officers request might be compelled.). It does not

matter that HRT had not yet crossed the threshold of the apartment; forcing the lawful

residents of a home to leave, under threat of laser directed, high-powered rifles and an

overwhelming show of force, is the equivalent of a forcible entry by the officers

themselves.


29

Indeed, as a practical matter, Dias was already under arrest when he emerged

from his home in submission to the show of force and the verbal commands of the

tactical team. United States v. Morgan, 743 F.2d 1158, 1164, quoting Florida v. Royer,

460 U.S. 491, 503 (1983) (rejecting description of encounter between defendant and

police as investigatory stop where nine police officers and several patrol cars

surrounded his residence in the dark, blocked his car and ordered him out on bullhorn);

see also, Sharrar v. Felsing, 128 F.3d 810, 819-20 (3d Cir. 1997) ([W]hen a SWAT team

surrounds a residence with machine guns pointed at the windows and the persons inside

are ordered to leave the house backwards with their hands raised, an arrest has

undoubtedly occurred.), abrogated on other grounds by Curley v. Klem, 499 F.3d 199

(3d Cir. 2007); United States v. Saari, 272 F.3d 804, 808-09 ( 6th Cir. 2001) (defendant

under arrest from the inception of his encounter with police officers where multiple

armed officers positioned themselves in front of the only exit from the apartment with

guns drawn, knocked and announced their presence, and ordered him outside when he

opened the door); United States v. Al-Azzaway, 784 F.2d 890, 893 (9th Cir. 1985)

(defendant arrested where officers surrounded trailer with weapons drawn and ordered

through a bullhorn to leave and drop to his knees); United States v. Maez, 872 F.2d 1444,

1450-2 (10th Cir. 1989) (Presence of ten officers, drawn weapons of SWAT team

surrounding the residence, use of loudspeakers ordering occupants out constituted

invasion of privacy interest in home and resulted in arrest).

This was, pure and simple, a warrantless search and arrest within the home,

without probable cause, trespassing the most basic and longstanding rule of the Supreme

Court with regard to the Fourth Amendment and the home.


30

B. The Government Failed to Demonstrate Exigent Circumstances Where It Has Not Proven the Necessary Probable Cause

The Government describes Dias extraction as a summoning from the apartment,

and addresses only the physical search of the apartment after Dias is in custody outside,

asserting that the warrantless search was justified under the exigent circumstances. The

Government does not assert that there was probable cause, conceding that the extraction

and search was premised only on reasonable suspicion that Dzhokhar Tsarnaev was there.

Even with an arrest warrant for Tsarnaev, the Government would have needed probable

cause to believe that he was in the house, because it was not his residence, as well as

either a search warrant for the house, or exigent circumstances. United States v. Steagald,

457 U.S. 204, 123 (1981). Here, the Government had no arrest warrant, no search

warrant for the 69 A Carriage Drive residence, and most importantly, produced no

evidence at the hearing to establish that probable cause existed that Tsarnaev was present,

that bombs or other dangerous materials were present, or that the occupants were engaged

in the commission of a felony.

Clearly, warrantless searches and seizures inside a home are presumptively

unreasonable, see Payton, supra, 445 U.S. at 586, and thus the Government must

demonstrate the existence of probable cause, and some exception to the warrant

requirement. One without the other will not permit the intrusion into the home. Probable

cause, alone, is not sufficient to search or seize within the home. Even where there is

probable cause to believe that evidence of a crime, or in this case, a person, will be found

within a private dwelling, the constitutional protections afforded to an individuals

privacy interest in his own home outweighs the governments interest in crime

prevention. United States v. Samboy, 433 F.3d ,153, 158 (1st Cir.2005), citing, Payton,


31

supra, at 588-89. Similarly, the Government cannot rely on exigent circumstances to

justify a warrantless search or seizure within the home, without demonstrating probable

cause as well. See United States v. DAndrea, 648 F.3d 1. 11 (1st Cir.)(exigent

circumstances is an exception to the warrant, not probable cause requirement. ) citing

Brigham City v. Stuart, 547 U.S. 398, 403 (2006); United States v. Wilson, 36 F.3d 205,

2908 (1st Cir. 1994).

To cross the apartments threshold, [the agents] needed (1) probable cause to

believe that contraband or evidence would be found inside, and (2) exigent circumstances

justifying an exception to the warrant requirement, allowing him to enter without first

obtaining a warrant. Wilson, supra, 36 F.3d at 208; see also, Kirk v. Louisiana, 536

U.S. 635, 636 (2002) (warrantless entry unlawful unless both probable cause and exigent

circumstances exist); United States v. Tibolt, 72 F.2d 965, 969 (1st Cir. 1995) (holding

warrantless entries of private residences barred in the absence of exigent circumstances

and probable cause), citing United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989). The

Government bears the burden of proving exigent circumstances. United States v.

Baldacchino, 762 F.2d 170, 176 (1st Cir.1985).

Exigent circumstances does not redeem the Fourth Amendment violation that began

here inside the home when HRT commands the residents to exit a private dwelling

because the Government did not demonstrate probable cause. The Governments only

asserted basis for probable cause adduced at the hearing was Dias alleged illegal

presence by way of his student visa problems, which is a civil, not criminal, violation

that would not provide probable cause for an arrest on criminal charges, or, in this case,

the probable cause necessary to make a warrantless arrest and search within the home.


32

Arizona v. United States, supra, 132 S.Ct. at 2505.

As for the warrantless entry and search of the home after Dias was detained

outside, the police had only a suspicion that Tsarnaev was in that home, as the

Government again concedes. This suspicion was not confirmed by the surveillance that

spanned well over five hours. No one saw Tsarnaev flee into the home, and police did

not chase him into that residence in hot pursuit. United States v. Santana, 427 U.S. 38, 42

(1976)(recognizing the right of police, who had probable cause to believe that an armed

robber entered a house a few minutes before, to make a warrantless entry to arrest the

robber and search for weapons under exigent circumstances exception). Their

suspicion of his presence instead rested on the information they had begun gathering as

early as 10 a.m., and collated by 1 p.m. that afternoon about the cellphones, the

friendship between Dias and Jahar, and Jahars visits to the apartment.

Notably, Agent Walker and his team were simultaneously in possession of

information that undercut the inference that Tsarnaev was in that location at that time.

First, surveillance of the apartment from noon on had not confirmed Tsarnaevs presence

or any other suspicious activity. Dias was aware that police wanted to speak to him about

Tsarnaev, and had given police his address earlier that afternoon. (4:216-17,

Kadyrbayev). No one attempted to flee, or leave the apartment. Although one of the

phones subscribed to Tsarnaev was emitting a signal from the house, it was not the phone

that had substantial communication with Tamerlan Tsarnaev immediately before the

bombing, and its connectivity with Jahar was hours before the bombing. (1:95-6 Walker)

Moreover, although the FBI had obtained every piece of data available regarding the

phones, the Government adduced no evidence that this phone had connectivity with


33

Tamerlan at any point, nor did they demonstrate that this phone showed connectivity with

Tamerlans wife sister, or parents, which one would expect if the phone were in fact a

phone used by Jahar (1:149, Walker).

The Government also failed to present evidence that gave rise to the suspicion

that there were bombs, bomb making materials, or anything dangerous within the home.

Agent Walker did not provide any specific, articulable facts establishing the basis for

such a suspicion. Indeed, the belief that such items might be within the home was

premised solely on the belief that Tsarnaev was in the home, (1:102, Walker). And as

there was no probable cause for this belief, there was no probable cause that would justify

a search of the apartment on the basis that there were bombs, guns or other dangers that

put police, the residents and the public in immediate danger.

C. The Government Failed to Demonstrate True Exigence

Exigency involves a compelling necessity for immediate action as w[ould] not

brook the delay of obtaining a warrant. United States v. Wilson, 36 F.3d at 209.

(citation omitted). In the Hearing, the Government thus had the burden of demonstrating

the existence of the compelling necessity for immediate action. They did not.

When the Director of the FBI gave authorization at 4:39 p.m. for an exigent

search, it was on the basis of the same information possessed at 1 pm; no new

information or development created an exigency at that time for immediate action. Many

hours had passed from the time the FBI developed the information and set up a perimeter.

There was ample time to present the information to a neutral and detached magistrate to

obtain a search warrant as AUSAs were assigned to the JTTF and the entire system was

on alert and available. Notably, that very afternoon, the Government secured warrants


34

for the search of the Tsarnaev brothers social media accounts to search the two cars

associated with the family, and the Tsarnaev home2.

Walker testified that HRT had been flown up specifically for the investigation,

and that he met with HRT and other participants in the JTTF off site to develop a plan of

assault and coordinate the outer perimeter of local police who had created a soft

perimeter early that day. Although he stated that the continued presence of Jahar would

present a danger to neighbors, the agents had not confirmed that he was in fact, present,

nor had any attempt been made to evacuate or clear the surrounding apartments or any

occupants over the course of the afternoon. Further, agents had the opportunity to speak

with Dias at noon, when he identified himself, and gave his location and phone number,

to the officer interviewing his friends, which itself would have alerted Tsarnaev, had he

been there, to the interest of the police in Dias and the probability the FBI would be

coming to the apartment. It would be more likely at this point that there would be a

danger presented, because Tsarnaev would likely flee, knowing the FBI was coming to

him. Thus there was no urgency to the Governments actions five hours later. See

United States v. Curzi, supra. Here, there was a span of hours before the exigent search

was authorized. Agent Walker and his team met off site to plan the raid, and assign

positions and discuss the logistics.

The legitimacy of law enforcements desire to neutralize a roaming threat to the

security of the citizens of Boston who had already killed multiple people and engaged

police in a firefight is not questioned, nor is the dedication of those seeking to protect and

serve. The burden of proof, however, of justifying an intrusive search without a warrant

rested on the Government, and in this respect the Government did not adduce sufficient 2 Tsarnaev filed Document #303, 1:13-cr-10200-GAO; warrants under seal


35

proof either of probable cause or imminent danger. The Courts decision that under the

facts in this case, the burden to demonstrate exigent circumstances has not been met will

not and cannot create a slippery slope that will hinder police action in response to a

similar situation in the future. The Governments position has been that the Court may

find that the probable cause and exigency prongs of the exigent circumstances doctrine

are satisfied merely upon a showing that the FBI had reasonable suspicion to believe that

Tsarnaev was in the Carriage Drive Apartment. In fact, the Fourth Amendments

protection of the home requires much more than this, and in this case, the Governments

concession that there was only reasonable suspicion, combined with an objective absence

of probable cause on the record the Government, compels this Court to suppress all

statements and evidence derived from the illegal search and seizure that resulted from the

call out.

SECOND PROPOSED CONCLUSION

DIAS KADYRBAYEVS DETENTION CONSTITUTED A DE FACTO INVESTIGATORY ARRREST

Assuming for purpose of argument that this Court accepts the Governments

factual and legal positions with regard to the search and seizure within the home, the

Court is left to determine whether the detention outside the home was a proper

investigatory stop. Even under the Governments investigatory detention after

compelled extraction from the home gloss of the Fourth Amendment and the probable

cause requirement, the circumstances of Dias detention outside the apartment, and his

transport to the police barracks, nevertheless transcended the boundaries of any

reasonable investigatory detention under Terry.


36

While no scientifically precise formula can determine whether a Terry stop

rises to the level of a formal arrest, United States v. Trueber, 238 F.3d 79, 93 (1st Cir.

2001) (internal quotation marks omitted), the Courts ultimate inquiry is whether there

was a formal arrest or restraint on freedom of movement of the degree associated with a

formal arrest. Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks

omitted).

It is true, as the Government asserts repeatedly, that neither handcuffing nor other

restraints will automatically convert a Terry stop into a de facto arrest. United States v.

Quinn, 815 F.2d 153, n.2 (1st Cir. 1987). Similarly, the use of weapons, without more,

will not automatically elevate a stop to a de facto arrest. United States v. Trullo, 809 F.2d

108, 113 (1st Cir.), cert. denied, 482 U.S. 916 (1987). In this case, however, we are not

talking about the use of weapons and handcuffs, without more. The something more here

is the use of a variety of coercive measures, for a significant time period, and in a manner

that is simply not indicative of a minimal intrusion. The cases the Government cites in

support of the claim that the intrusive protective measures utilized to detain Dias

amounted to nothing more than an investigatory stop are not persuasive because none

evidence the confluence of highly intrusive and coercive elements here, for the period of

time that these measures were put in place.

This was not a brief stop, nor was the intrusion into Dias liberty interests

minimal or limited. Dunaway, 443 U.S. at 210-11 (distinguishing the de minimis

intrusions of Terry stop). First, forcible removal from the home that signals the

detention was not in a public place, and Dias relocation to a police station was not a

removal to a neutral location for purposes of safety; it was a police barracks, and the


37

purpose was to interrogate him. Dunaway, supra; Kaupp, supra. Second, the use of

protective measures here, even if reasonable, were not temporary, or brief in duration.

See United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012) (officer who drew his weapon as

he approached drug suspect seated in car with lower half of body hidden alone, and used

cuffs only temporarily to effect a weapons frisk, did not convert Terry stop into an

arrest); United States v. Meadows (officers use of cuffs to conduct Terry stop where he

had reasonable concerns for safety coupled with short duration of investigatory stop

five minutesprecluded finding of arrest). While United States v. Sharpe, 470 U.S.

675, 685-86 (1985), expresses the Courts reluctance to put in place an artificial time

limit on what is a reasonable detention, its determination that the ninety minute detention

in Place is a patently unreasonable detention ([t]he length of the detention of

respondents luggage alone precludes the conclusion that the seizure was reasonable)

remains the law. United States v. Place, 462 U.S. 696, 709-710 (1983). More

importantly, the duration cases cited by the Government as proof that a lengthy

detention does not require a finding of arrest do not involve a detention of this length

under such coercive conditions, and without anything to ameliorate a suspects

reasonable conclusion that he is, in fact, not free to go.

The Governments claim that the intrusions of Dias liberty were justified by the

need for officer safety, and reasonable because the FBI were investigating a serious

crime, also falls short. By the time Dias was placed into the police unit, HRT had already

confirmed that he was not armed: they forced him to remove his shirt, to lower his pants,

and then thoroughly frisked him and cuffed him before placing him in a police vehicle.

Any reasonable suspicion that he might have been armed when he came out of the


38

apartment was thus extinguished even before he was placed in the vehicle. See United

States v. Mohammed, 630 F.3d 1 (1st Cir. 2010) (use of cuffs and drawn weapons to

effect Terry weapons frisk of shooting suspect did not constitute arrest where measures

warranted by suspicion involved in shooting and defendant detained briefly before gun

found). Nevertheless, Dias was kept, shirtless, cuffed and secured in a police vehicle by

heavily armed agents when SA Walker questioned him, and thereafter, even after the

investigatory questions had ceased and no additional information supporting probable

cause of a criminal violation was to be had. The only time the cuffs were removed, albeit

temporarily, was when Dias signed the Consent to Search form. Once that was done, the

cuffs were once again put back on.

The reasonableness test applicable in a Terry stop analysis is irrelevant because

that test presupposes that the seizure under scrutiny was, on the whole, a less intrusive

measure than an actual arrest. United States v. Acosta-Colon, supra, 157 F.3d at 14,

citing United States v. Quinn, 815 F.2d at 156. The Government brushes away the

extremely intrusive and coercive measures to effect and maintain the detention on the

proposition that the use of these protective measures to effect the purposes of the

intrusion, which was, at that time, the determination of whether Tsarnaev (or any other

danger) was present in the house, was reasonable. Yet the Government concedes that by

approximately 6 pm, HRT had confirmed what Dias, Bayan, and Azamat had told SA

Walker in response to his interrogations of each, conducted from 5:05 until roughly 5:25,

namely, that Tsarnaev was not in the Carriage Drive apartment and neither were there

any bombs or other dangers. The interrogation produced no other additional information

which supplied the basis for further detention of Dias on the grounds that he had


39

committed a criminal offense. As Agent Walker testified, he believed that Dias could

provide additional information about Tsarnaev, and that the FBI was very interested in

obtaining this information. He did not provide any facts supporting a reasonable

suspicion warranting continued detention. What the court is left with is SA Walkers

desire to interrogate Dias.

Dias had been in custody, cuffed in a police vehicle, guarded by an armed officer,

and isolated from his friends after having been forcibly removed from his home by a

tactical force, for an hour. During this time, no one explained to Dias that he was not

under arrest. He was not told that his detention in the back of a police cruiser in cuffs was

solely for safety purposes, that the cuffs were temporary, or that he was not under arrest.

Further, since the Courts analysis is an objective one, the agents subjective reasons for

utilizing the cuffs is irrelevant. Kaupp, 538 U. S. at 632(further citation omitted).

The legitimacy of his continued detention, then, turns on the Governments claim

that Dias consented to his removal and transportation to police barracks for interrogation,

as relocation for purposes of interrogation at a police station is the very factual scenario

which the Supreme Court has repeatedly stressed can never constitute a reasonable Terry

detention, and requires probable cause. See Kaupp, supra; Dunaway, supra, and Hayes,

supra. 3 Here, there was no consent, only compliance.

Dias ability to provide consent, in the true meaning of the word, cannot be

divorced from the events that led to his finding himself cuffed and in the back of a police

3 This court, in Shah v. Czellecz, cited First Circuit case law that interprets the Supreme Court case law to

permit relocation in very circumscribed circumstances. 2010 WL 5376362 (D.Mass. Dec. 12, 2010). citing Acosta-Colon, supra; United States v. Le, 377 F.Supp. 2d 245, 255 (D. Me. 2005). In Shah, the defendant was relocated from a public space, not his home, to a station for fingerprinting not questioning, and under different, less coercive circumstances than those presented here. Notwithstanding the First Circuits position on removal, the Supreme Court has specifically addressed removal from a suspects residence for purposes of interrogation and held that it requires probable cause.


40

car being asked to agree to continue the conversation elsewhere. Even if this Court does

not find that his initial removal was an illegal arrest made without probable cause, it is

respectfully submitted that the Court cannot conclude that Dias consented to being taken

to police barracks for questioning under the coercive circumstances present.

Dias was never informed that he was free to go nor was it at all conceivable

that had he declined to speak with Agent Walker or any of the other agents, or to go to

the barracks, he would have simply been permitted to go on his way. See Kaupp,538

U.S. at 631-2; Dunaway, supra, 442 U.S. at 207 (where suspect told he was not under

arrest, he was also never told he was free to go, and would have been physically

restrained if he had refused to accompany the officers or had tried to escape their

custody.). More to the point, no reasonable person would believe that he was free to

decline Walkers invitation, a request delivered to the cuffed recipient in the back of a

guarded car, surrounded by a massive tactical force, after a forcible removal from ones

home under threat of semi-automatic weapons that visibly targeted the heads and torsos

of everyone in that apartment.

The Governments burden of proving that consent was freely and voluntarily

given cannot be discharged by showing no more than acquiescence to a claim of lawful

authority) Kaupp, 538 U.S. at 631, citing Royer, 460 U.S. at 497. (footnotes omitted).

When Agent Walker requests whether Dias will agree to talk to him further in a more

comfortable location, Dias is still in cuffs, seated in the back of a guarded vehicle,

shirtless, and isolated from his friends.

The benefit of conducting an interrogation in private does not shed any light on

whether Dias consent to the removal was voluntary, an act of free will, or anything more


41

than a submission to authority. Other facts, however, do. Nothing distinguishes this case

from that presented to Kaupp, where the Court dismissed the notion that a young mans

okay was consent under the circumstances present there---three police appeared in his

bedroom at night and stated we need to go and talk ---except perhaps that the factors

supporting the conclusion that Dias agreement was not a product of free will are

stunningly more convincing. 538 U.S. at 528, 531. The search of the apartment

corroborated what Dias had told Walker: Tsarnaev was not there. SA Walker did not

then explain to Dias that he was free to go, nor did he clarify that Dias was not under

arrest. He did not remove the cuffs, permit Dias to exit the car, or otherwise indicate that

Dias could simply go back home, nor had he released, to Dias knowledge, Bayan or

Azamat. Walker did not, in obtaining this consent, inform Dias that he could meet them

at the location, secure a ride with friends, or even that he could dress or gather his

personal belongings. In fact, no one even grabbed a shirt for Dias, the voluntary

witness, to put on for his consensual interview.

Although Walker testified that at this time, he was not aware of and did not

consider whether any police regulations or otherwise required cuffing for transport4, the

subjective reasons for the use of such cuffs, such as for officer safety, or because of

regulation, does not operate to ameliorate the coercive effect of those cuffs from the

perspective of the person wearing them. The Supreme Courts dismissal of this type of

rationale in Kaupp makes this clear:

Nor is it significant, as the state court thought, that the sheriff's department "routinely" transported individuals, including Kaupp on one prior occasion, while handcuffed for safety of the officers, or

4 In point of fact, Walker was never concerned about a potential witness being restrained as he allowed

the original transport to occur with Dias cuffed. It was only after having Dias returned to the scene to

obtain a consent to search that the issue of cuffs arose.


42

that Kaupp "did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation."[ ] The test is an objective one [ ] and stressing the officers' motivation of self-protection does not speak to how their actions would reasonably be understood. As for the lack of resistance [to the use of cuffs] failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer.

Kaupp, 538 U.S. at 632, citing Chesternut, supra, 486 U.S. at 574.

In short, nothing diminished the extremely coercive environment in which Dias

was asked for his consent and the events that followed only affirms that Dias was a

prisoner, and that consent was just compliance. As the Supreme Court wryly observed in

Kaupp, finding that Kaupps consent was no more than a submission to authority: if

reasonable doubt were possible on this point, ensuing events would resolve it: removal

from ones house in handcuffs on a January night with nothing on but underwear for a

trip to a crime scene on the way to an interview room at law enforcement headquarters.

538 U.S. at 632. Here the facts are not so dissimilar.

The coercive environment continued at the MSP barracks. Dias was not

immediately brought into barracks, but was kept restrained and guarded in the back of the

police car, in the parking lot, for almost two hours. Again, the reasons for the delay in

bringing him in, namely that Agent Schiliro was on his way and that the FBI was

shorthanded, is similarly irrelevant to the analysis, as the test is an objective one. Kaupp,

538 U.S. at 632, citing Chesternut, 486 U.S. at 574. Dias was not informed that of the

reasons for this delay, and objectively, it defies reason to presume that police would have

kept someone who was not under arrest confined, shirtless and in cuffs, in a car outside

police barracks simply because there was no room to put him in for the interview.

Someone who was not in custody and under arrest would simply be taken into the lobby,


43

unrestrained, and asked to wait. If thought necessary, the New Bedford officer could

have sat with Dias in the lobby. Dias further testified that he asked the officer in the front

seat over and over whether he could leave, now that Jahar had been caught, and over and

over when they were going inside; the answer was only, we have to wait or I dont

know. (1:235-36).

Eventually Dias was escorted, still in cuffs, to the police barracks, and was led

inside to a room within the secure, non-public area of the barracks. Only then was he un-

cuffed. Although not physically restrained by cuffs, Dias was nonetheless still subject to

the officers custody and control. When Dias was asked if he had to use the bathroom, he

was not thereafter permitted to leave the secure area to go to the lobby to do so. Agents

accompanied him to the bathroom, and the door was propped open so that Agent Schiliro

could keep an eye on things. The fact that he was not permitted to go the bathroom

without monitoring would indicate to a reasonable person that he was not free to leave.

Dias was confined to a room in the barracks off a locked corridor as an officer

patrolled the hallway, from the time of his arrival, around 9 pm, until he was finally

driven home after four in the morning. During this time he was interrogated, and for

periods at time, left alone. He was not given anything to wear, even after asking. He was

not given the opportunity to speak to his girlfriend, or told he could call his mother, a

lawyer or his embassy, and after hours of interrogation, was left alone in the room, and

told to lie on the floor if he was tired. Nothing in the words or conduct of the agents

communicated that he was free to leave, or to make any decisions of his own. Unlike his

roommate, Dias did not have his phone.


44

There is little doubt that the physical restraint, isolation, and limitation of

movement indicated that Dias Kadyrbayev was under arrest. See Florida v. Royer, at 499,

503 (finding that defendant was under arrest as a practical matter where he was removed

from public concourse area of airport, and taken to small room by officers who held his

plane ticket, ID, and luggage). In Royer, the defendants seizure began as a consensual

encounter between police, and did not involve the use of multiple armed law enforcement

agents. Id. Here, by contrast, there was nothing consensual about Dias first contact with

law enforcement. Dias was ordered from his apartment under threat of being shot if he

did not comply. He emerged to an overwhelming force of heavily armed law

enforcement. He was stripped and cuffed at gunpoint, placed in a car, detained for an

hour or more, then transported, still cuffed and restrained in the back of a police car, to

State Police Barracks where he again was detained in a tightly controlled environment

until his release the next morning. He was under arrest. See Dunaway v. New York,

supra, 442 U.S. at 212 (probable cause required to support arrest where defendant was

taken involuntarily to police station, placed in interrogation room and questioned under

conditions in which he was not free to go). Accordingly, the Court must suppress the

statements, as well as the consents to search, obtained as a result of the constitutional

violation

THIRD PROPOSED CONCLUSION

THE ILLEGAL ARREST TAINTS THE STATEMENTS GIVEN BY DIAS ON APRIL 19

The illegal arrest not only taints the consent to search, but it also requires

suppression of the statements at the police barracks as the statements were the product of


45

Dias continued illegal detention. The fact that Miranda warnings may have preceded the

statements does not win the day for the Government, even if this Court finds that the

advice and waiver were sufficient. As the Supreme Court held in Brown v. Illinois,

Miranda warnings, alone and per se, cannotalways break, for Fourth Amendment

purposes, the causal connection between the illegality and the confession. 422 U.S. at

603, see also, Taylor v. Alabama, 457 U.S. 687, 699 (1982) (O'CONNOR, J., dissenting)

(noting that, although Miranda warnings are an important factor, they are, standing

alone, insufficient.). Every other factor utilized in the taint analysis points to the

opposite conclusion. Because the Governments continued stance is that Dias Fourth

Amendment seizure was based on reasonable suspicion, not probable cause, his

statements at the police barracks must be suppressed unless the Government meets its

burden of persuasion and demonstrates an act of free will [sufficient] to purge the

primary taint of the unlawful invasion. Kaupp, supra, 538 U.S. at 633, citing Wong Sun

v. United States, 371 U.S. 471 (1963); Brown, supra, 422 U.S. at 604.

Under this analysis, the Court must suppress. The Miranda warnings given, even

if comprehended did not purge the taint where, as here, the purpose of the Fourth

Amendment violation was to detain Dias Kadyrbayev for purposes of custodial

interrogation. Temporally, the statement is the product of custodial interrogation that

followed the arrest, with no intervening factor

Documents

Case against de-facto arrest