Full opinion text
ORDER JULIE E. CARNES, Chief Judge. The above entitled action is presently before the Court on the Magistrate Judge’s Report and Recommendation [638] recommending denying defendant Jorge Anaya-Medina’s Motion to Suppresa Statements [301] and Motion to Suppress Evidence [302]; recommending denying defendant Alejandro De La Cruz-Plancarte’s Motion to Suppress Evidence [322]; recommending denying defendant Otha Barnes’ Motion to Suppress Evidence [315]; recommending granting defendant Gerald Durrance’s Motions to Suppress evidence [304, 455]; recommending granting in part and denying in part defendant Martina Flores’ Motion to Suppress Evidence [349]; recommending denying defendant Noe Aguilar-Camudio’s Motions to Suppress [331, 332, 334]; recommending denying defendants Jorge Anaya-Medina’s, Luis Haces-Delgado’s, and Martina Flores’ Motions to Suppress Wiretaps [328, 342, 351]; recommending denying defendant Luis Haces-Delgado’s Motions to Suppress Evidence and Statements [340, 341]; recommending denying Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis Haces-Delgado’s Motions for Severance [306, 329, 333, 381]. Defendants Martina Flores, Noe Aguilar-Camudio, Jorge Anaya-Medina, and Luis Haces-Delgado filed Objections [658, 659, 660, 661] to the Report and Recommendation [638] on January 28, 2011. Upon review, the Court ADOPTS the Magistrate Judge’s Report and Recommendation [638] DENYING defendant Jorge Anaya-Medina’s Motion to Suppress Statements [301] and Motion to Suppress Evidence [302]; DENYING defendant Alejandro De La Cruz-Plancarte’s Motion to Suppress Evidence [322]; DENYING defendant Otha Barnes’ Motion to Suppress Evidence [315]; GRANTING defendant Gerald Durrance’s Motions to Suppress evidence [304, 455]; GRANTING IN PART and DENYING IN PART defendant Martina Flores’ Motion to Suppress Evidence [349]; DENYING defendant Noe Aguilar-Camudio’s Motions to Suppress [331, 332, 334]; DENYING defendants Jorge Anaya-Medina’s, Luis HacesDelgado’s, and Martina Flores’ Motions to Suppress Wiretaps [328, 342, 351]; DENYING defendant Luis Haces-Delgado’s Motions to Suppress Evidence and Statements [340, 341]; DENYING defendants Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis HacesDelgado’s Motions for Severance [306, 329, 333, 381]. This case is now ready to be set for trial. Given the number of defendants and therefore the anticipated difficulty in setting a trial date, attorneys should advise by July 1, 2011 of any scheduling conflicts that they are aware of through the end of 2011. Excludable time is allowed to commence as of June 13, 2011 through July 1, 2011, pursuant to 18 U.S.C. § 3161(h)(7)(B)(iv) (to give counsel for the defendant or attorney for the Government reasonable time necessary for effective preparation) and (h)(6) (a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted). Accordingly, the Court concludes that the ends of justice served by a continuance outweigh the best interest of the public and defendants in a speedy trial. SECOND SUPERSEDING INDICTMENT ORDER AND REPORT AND RECOMMENDATION JANET F. KING, United States Magistrate Judge. Pending before the court are the following motions: Defendant Jorge Anaya-Medina’s motion [Doc. 301] to suppress voice exemplars and statements obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009; Defendant Alejandro De La Cruz-Plancarte’s motion [Doc. 322] to suppress evidence obtained during the same warrantless search; and Defendant Javier De La Cruz-Loya’s motion [Doc. 297] to suppress the voice exemplars taken for purpose of identification on April 29, 2009, and his post-Miranda statements obtained on April 29, 2009, and the evidence seized during the same warrantless search; Defendant Otha Barnes’ motion [Doc. 315] to suppress evidence seized based on a warrantless search on December 10, 2008, and the voice exemplars obtained that date; Defendant Gerald Durrance’s motions [Doc. 304 and 455] to suppress evidence seized pursuant to a warrantless search on April 29, 2009; Defendant Martina Flores’ motion [Doc. 349] to suppress evidence seized on April 29, 2009, seized pursuant to federal search warrants for the residences located at 604 and 608 Sandyhills Avenue, McAllen, Texas; Defendant Noe Aguilar-Camudio’s motions [Docs. 331, 332, and 334] to suppress evidence seized based on a warrantless search and statements obtained on April 29, 2009; Defendants Jorge Anaya-Medina’s motion [Doc. 328], Defendant Luis Haces-Delgado’s motion [Doc. 342] and Defendant Martina Flores’ motion [Doc. 351] to suppress the evidence obtained from the wiretap orders; Defendant Luis Haces-Delgado’s motions [Docs. 340 and 341] to suppress evidence seized pursuant to a warrantless search and statements obtained on April 29, 2009; Defendants Otha Barnes’, Andres Bautista-Gallegos’, Noe Aguilar-Camudio’s, and Luis HacesDelgado’s motions [Docs. 306, 329, 333 and 381] for severance; Defendant Jorge Ana-ya-Medina’s request [Doc. 487] for a hearing on his wire tap motion; Defendant Martina Flores’ request [Doc. 575] for a Franks hearing in connection with her wire tap motion; Defendants Otha Barnes’ and Luis Haces-Delgado’s motions [Docs. 306 and 381] in limine; Defendant Noe Aguilar-Camudio’s request [Doc. 333] for an evidentiary hearing in connection with his motion for severance; Defendants Alfonso Rios’ and Noe Aguilar-Camudio’s motions [Docs. 335 and 338] for a bill of particulars; and Defendants Otha Barnes’, Noe Aguilar-Camudio’s and Luis HacesDelgado’s motions [Docs. 309, 330, 382] to disclose confidential informant. After consideration of the facts established at the various evidentiary held on the motions to suppress, of the arguments and briefs of the Defendants and the Government, and of the binding and persuasive legal authority, the court makes the following recommendations and enters the following orders resolving the pending motions. Defendants Anaya-Medina’s, CruzPlancarte’s and Cruz-Loya’s Motions to Suppress Evidence and Statements Pending before the court are Defendant Jorge-Alejandro Anaya-Medina’s (“Cokis”) motion [Doc. 301] to suppress statements obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009, at 2265 Ranch Trial, Nor-cross, Georgia; Defendant Alejandro De La Cruz-Plancarte’s (“Valda-Ceja”) motion [Doc. 322] to suppress evidence obtained during the same warrantless search; and Defendant Javier De Le Cruz-Loya’s (“Loza-Cruz”) motion [Doc. 297] to suppress statements obtained on April 29, 2009, and evidence seized during the same warrantless search. An evidentiary hearing was held on the motions to suppress on January 28, 2010. [Doc. 408]. Defendants Cokis and Loza-Cruz contend that the voice exemplars that they gave on April 29, 2009, prior to being advised of their rights pursuant to Miranda violated their Fifth and Sixth Amendment rights to remain silent and to counsel. [Doc. 438; Doc. 442 at 12]. Defendants Cokis and Valda-Ceja contend that the consent to search obtained from Valda-Ceja was not voluntary; therefore, the warrantless search of their residence violated their Fourth Amendment rights. And Defendant Loza-Cruz contends that he refused entry into the residence or any search of the residence; therefore, the warrantless search of the residence violated his Fourth Amendment rights. [Doc. 442 at 8-12], The Government responds to the motions to suppress evidence contending that Defendant Valda-Ceja’s consent was voluntary and gave the agents authority to search all common areas of the residence and all bedrooms with the exception of the bedroom of Defendant Loza-Cruz; therefore, excepting evidence seized from that bedroom, the Government intends to offer at trial all other items seized at the residenee against all three Defendants. [Doc. 466 at 8-10]. As to the motions to suppress the voice exemplars, the Government acknowledges that Defendants Cokis and Loza-Cruz were not advised of their Miranda rights prior to the voice exemplars being taken; however, the Government contends Defendants were not in custody at the time the voice exemplars were taken. Therefore, the Government argues that taking the voice exemplars did not violate Defendants’ rights. [Id. at 10-12]. And the Government has advised the court and counsel for Defendants that the voice exemplars will only be used for the purpose of identification. I. Facts On April 29, 2009, members of one of the Strike Force (“SF”) Groups were assisting another group within the SF, made up of Federal Bureau of Investigation (“FBI”) Special Agents, with the arrest of an individual known as Cokis for whom a federal arrest warrant had been issued. (Tr. at 7-8, 54-55, 73, 85). Based on information provided to the SF identifying the residence where Cokis was believed to be residing, the agents went to 2265 Ranch Trial in Norcross, Georgia. (Tr. at 8-9, 54-55). The agents, numbering eleven to thirteen, attired in tactical gear arrived at the residence at approximately 8:00 a.m. Some of the agents established a perimeter around the house. (Tr. at 9, 38, 56). Agents Bowen, Cromer and Barnes went to the front door and knocked. (Tr. at 9-10, 56). No one answered; however, the agents heard noise from inside the residence and observed someone looking out of one of the front windows. The agents continued to knock and call for someone to answer the door. (Tr. at 10, 57). After ten to fifteen minutes, at about 8:30 a.m., the door opened approximately four to five inches and a male, later identified as LozaCruz, looked out. The agents could only see his face. (Tr. at 10-11, 41, 57-58, 77). Agent Bowen, who is proficient in Spanish, after identifying the agents as police, asked Loza-Cruz who else was inside and if the occupants could come outside. (Tr. at 11-12, 57-58). When Loza-Cruz responded that others were in the residence, the agent stated that she needed to see them. Loza-Cruz called to the others in the residence, and when they came to the door, Agent Bowen asked them to step outside. (Tr. at 11, 57-58). Loza-Cruz asked if the agents had a warrant. Agent Bowen responded, no, and Loza-Cruz told the agents that they could not come into the residence, and as he exited, he closed the door to the residence behind him. (Tr. at 11, 58, 78). Four individuals exited the residence. Along with Loza-Cruz, a juvenile and two males subsequently identified as Cokis and Valda-Ceja exited. (Tr. at 11-12, 58). No weapons had been drawn by the agents. (Tr. at 14). Agent Bowen stated that until Cokis was identified, none of the men were free to leave. (Tr. at 85). As the four men exited the residence, the agents separated the men by a few feet to prevent them from whispering to one another; however, all of the men remained within eye-sight of each other and in the area of the walk-way to the front door. (Tr. at 13, 37-38, 58-59). Agent Bowen was not sure how many of the agents were in Defendants’ view. (Tr. at 38, 42, 59). The agents began trying to identify the four men by asking for names and any identification and obtaining biographical information for DEA forms. (Tr. at 13, 43, 59-60, 76, 81-82). Agent Bowen did not recall seeing any of the men handcuffed while she was outside and did not recall seeing any of the men pushed to or lying on the ground. (Tr. at 60-61). She stated that while she was outside no one was pushed to the ground. (Tr. at 61-62). When Valda-Ceja appeared cooperative, Agents Bowen and Cromer walked him away from the others to speak with him. (Tr. at 13, 76). Although Agent Bowen began speaking to him in Spanish, Valda-Ceja responded in English. Except for Agent Bowen explaining some things in Spanish, the conversation was conducted in English. (Tr. at 13-14, 63). The agents asked Valda-Ceja about the residence and his association with the residence and about how he knew the other men. He identified one of the men as Cokis. (Tr. at 14, 63). The agents also asked him about the vehicle parked in the driveway, and Valda-Ceja responded that the vehicle was his and that he had registration for the vehicle in his name inside in his room. (Tr. at 14-15, 64). The agents asked Valda-Ceja if they could see the registration, and he responded, yes. (Tr. at 15, 64). They asked if Valda-Ceja would allow them to go with him into the residence to see the paperwork, and he responded, yes. (Tr. at 64-65). As the agents and Valda-Ceja were about to enter the residence, approximately ten to fifteen minutes after the men had exited, Loza-Cruz stated in Spanish, “you know, I don’t want them in the house.” Valda-Ceja responded in Spanish that he did not have anything in the house and that the agents could come inside if they wanted. (Tr. at 15-16, 44, 64, 80). As they entered, the agents asked Valda-Ceja if other agents could come inside to check to see if there was anyone else inside. He responded, yes. A couple of agents checked the residence for other occupants as Agents Bowen and Cromer went with Valda-Ceja to his bedroom which he stated he shared with Cokis-the second bedroom on the left. (Tr. at 15, 42, 44, 65-66). In the bedroom, Valda-Ceja, who was not handcuffed, sat on the bed and produced the registration for the agents to examine. As the agents discussed the registration and asked Valda-Ceja about Cokis, Agent Bowen stated that Valda-Ceja appeared nervous, fidgeting on the bed, therefore, making the agents nervous. (Tr. at 16, 44-47, 67-68). Agent Cromer asked him if there was anything in the room that the agents needed to know about, including guns, and Valda-Ceja responded, no. (Tr. at 16, 47). Agent Cromer asked if they could quickly search for the agents and his safety. He responded, that’s fine. (Tr. at 16, 47, 68). A few feet from the bed was an open closet, about an arm’s length from Valda-Ceja. (Tr. at 16, 48). In the closet, on top of some plastic containers and partially under some clothing, Agent Cromer located a handgun. (Tr. at 16, 49, 68-69). Valda-Ceja denied knowledge of the handgun. (Tr. at 17, 49, 70). The agents also found a very small quantity of cocaine in a trash can in the bedroom. (Tr. at 17, 70). The agents did not handcuff Valda-Ceja. (Tr. at 70). The agents then asked Valda-Ceja if there were any other guns in the residence, and he responded, no. (Tr. at 17, 49). They asked him if they could search the residence for guns, drugs or large amounts of currency. (Tr. at 17, 49-50, 71). Valda-Ceja responded that he thought the agents had already searched the residence. Agent Bowen explained that the agents had not searched the residence only conducted a security sweep looking for people. (Tr. at 17, 50, 71). At approximately 8:36 a.m., Valda-Ceja agreed to the search, and Agent Bowen gave him a written consent to search form in Spanish for him to read. (Tr. at 17-18, 50, 71; Gov’t Ex. 1). Defendant still was not handcuffed. (Tr. at 50). The form stated, as translated by Agent Bowen: Consent to Search 1. I’ve been asked to authorize agents of the Drug Enforcement Administration to search. (Describe the person, place or thing to search) 2265 Ranch Trail, Norcross. 2. I haven’t been threatened or forced in any manner. 3. I have consented freely to this search. (Tr. at 18-19; Gov’t Ex. 1 (italics handwritten)). Then Agent Bowen observed Valda-Ceja sign the form, which she and Agent Barnes also signed. (Tr. at 19). After a few minutes, the agents and Valda-Ceja returned outside. (Tr. at 51). Agent Bowen, who did not recall exactly when Defendants were handcuffed, stated that Defendants were not handcuffed at this time. (Tr. at 41-42, 50). And at some point, Defendants were relocated to sit in the area in front of the garage door. (Tr. at 39). The agents conducted a search of the residence seizing various firearms, controlled substances, packaging materials, cell phones, documents and other items. (Tr. at 21-30; Gov’t Exs. 2, 4). Before Defendants were advised of their Miranda rights, sometime prior to 9:00 a.m., each was asked to give a voice exemplar by answering questions over the telephone. (Tr. at 30-31). At 8:46 a.m. (Tr. at 90), Cokis answered the following questions over the telephone: What is your name? Alberto Zuniga Do you have any other names or nicknames? No, well just Cokis. What is your DOB? 01/09/87 How old are you? 21 Where are you from? San Luis Potosi, Mexico Where do you live now? Here. I just moved so I don’t know the address. How long ago did you move? 1 month ago There at the location you are now? Yes Do you have a phone? Yes but I don’t know it. Is it a cell phone? Yes How long have you had the phone? About 3 months Do you work? No — sometimes yes sometimes no as I work in landscaping. Do you work for a company? No I just work for cash. Is there a phone you call to look for work? No — I don’t know the number. Are you married? No [Doc. 438 at 5]. Agent Bowen subsequently, at 9:36 a.m. for Valda-Ceja, at 9:52 a.m. for Cokis, and at 10:17 a.m. for Loza-Cruz, advised each Defendant of his Miranda rights using a DEA 13A card, reading from the Spanish side. (Tr. at 31-32; Gov’t Ex. 5). Each Defendant was advised: Before we ask you any questions, you must understand: — You have the right to remain silent. — Anything you say can be used against you in court. — You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. — If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. Do you understand? Are you willing to answer some questions? (Gov’t Ex. 5). As she began to the read the card, she asked each Defendant to advise her if he did not understand something she said in order for her to explain, and after each bullet point, she asked if each Defendant understood. Finally, as she finished, she asked each Defendant if he understood. (Tr. at 32). Each Defendant appeared to understand the advice of rights. (Tr. at 32). She also gave each Defendant the opportunity to read the card. (Tr. at 32). No agent had his or her firearm drawn on Defendants. (Tr. at 33). Agent Bowen did not recall if Defendants were handcuffed when advised of their rights or when they made statements. (Tr. at 52-53). Although Defendants Loza-Cruz and Valda-Ceja were non-responsive to some questions asked, no Defendant stated that he did not want to make a statement or answer questions and no Defendant asked for a lawyer. (Tr. at 34-36). According to Agent Bowen, after the agents completed the search and conducted the post-Miranda interviews of Defendants, her supervisor, Agent Murphy spoke with his counter-part with the FBI about what had been found and whom to arrest. After being advised whom to arrest, the agents advised Defendants that they were under arrest. (Tr. at 86). She stated that the agents were at the residence with Defendants for approximately two hours, from 8:30 a.m. to about 10:17 a.m. (Tr. at 61). Defendants Anaya-Medina/Cokis and Cruz-Plancarte/Valda-Ceja testified at the evidentiary hearing on the motions to suppress. (Tr. at 92-119). The court does not find the testimony of Valda-Ceja credible based on the court’s observation of the witness, the inconsistencies within his story and with other witnesses, and the lack of plausibility in the testimony. Therefore, the court will not rely on this testimony in resolving the motions to suppress. However, except as noted infra, having observed and considered the testimony of Cokis, the court finds his testimony credible. Cokis testified that as of April 29, 2009, he had been living at the residence for about one month with the other Defendants and a juvenile with the rent due at the end of the month in the amount of $100. (Tr. at 93-94). He and Valda-Ceja stayed in the second bedroom. (Tr. at 94). He recalled that at 8:00 a.m., the agents knocked on the door. He did not recall who opened the door but did recall that the agents asked if they could come outside. (Tr. at 95-96). He recalled four officers being around them and a bunch of questions being asked to which he responded that he did not know the answers. (Tr. at 96). He did not hear anyone consent to the agents going into the residence, but he did hear “Pedro,” that is, LozaCruz, state that the agents could not enter. (Tr. at 98). According to Cokis, after Loza-Cruz made this statement, the agents took him out front and threw him face front onto the grass. (Tr. at 98). Cokis also said that he was handcuffed and told there was a warrant for him about fifteen minutes after exiting the residence. (Tr. at 97-98, 100-01). He was told the others would be let go but not him because of the warrant for his arrest. (Tr. at 100-01). However, Cokis said that he could not remember if he was advised of the warrant for his arrest before or after he answered the questions on the telephone. (Tr. at 101-02). Valda-Cruz, after confirming that he had lived at the residence for twenty-seven days and stayed in the second bedroom (Tr. at 103-05), began to tell a story-which is exactly how the court views his testimony — about what he claims occurred on April 29, 2009. He contends that before the four men exited the residence, with thirteen to fourteen officers all around the house, and while he and the others were all standing together at the entrance, the female officer asked to speak with him and for identification. He said he gave her identification before exiting the residence. (Tr. at 106-07). While not significant, the court does not believe that with four people crowded in the doorway and agents standing outside, the questions about identity and obtaining identifications took place. Then, once the men had exited the residence, Valda-Ceja said the female agent immediately asked him if they could go in the residence, and that he responded, no. He claimed to have asked for the “order — search?” (Tr. at 106-07). However, on cross-examination, Valda-Ceja was asked, “You never told the agents they couldn’t come in the house, did you?” And, he responded, “No, no, no, no, no.” (Tr. at 115). That response — which the court understood to be Valda-Ceja’s agreement that he did not refuse entry into the residence — is another inconsistency in Defendant’s recounting of the events. Then, according to Valda-Ceja, for almost an hour, the agents were in his face asking to be allowed in the residence while threatening him with calling immigration agents if he did not agree. (Tr. at 107-08, 118). The time line of events refutes Defendant’s exaggeration of the time the agents allegedly spent threatening him to allow them into the residence, especially when considered in conjunction with his claim that another hour was spent intimidating him in the bedroom for consent to search the residence. The voice exemplars of the three Defendants all took place before 9:00 a.m. — a difficult task if Valda-Ceja was outside being badgered or in the second bedroom being threatened for hours. (Tr. at 30). And, approximately a hour after the men exited the residence, Valda-Ceja was being advised of his Miranda rights, at 9:36 a.m. — again, a slight interruption in the intimidation tactics allegedly being used by the agents. (Tr. at 31, 41, 61). At some point, while outside, Valda-Ceja agreed that the agents asked about the car parked on the driveway and that he responded that it was his and that the registration for it was in his room inside. (Tr. at 108). He said he asked to go in to get the registration, and the agents followed him. Valda-Ceja stated that the agents did not ask to follow him into the residence. (Tr. at 108, 115). He stated that as they started inside, Loza-Cruz wanted to close the door but that agents took him away towards the garage and threw him on the ground while saying bad words. (Tr. at 108-09, 115). On cross-examination, when specifically asked, he said Loza-Cruz called out that the agents did not have a warrant and not to let them inside. (Tr. at 115-16). He also stated that the agents did not ask permission to check the house for other people. (Tr. at 110). Given Agent Bowen’s straight-forward accounting of Loza-Cruz’s refusal to allow the agents into the residence and his subsequent statements to Valda-Ceja not to allow the agents inside, the court finds no reason to disbelieve her testimony that Valda-Ceja did consent to the agents’ entry and to the subsequent search of the residence. Once in the bedroom, Valda-Ceja said that he sat on the bed to look for the registration but that the agents found it, although he does not explain how or where, and that they searched the room, finding the gun in the closet, without asking his permission to search. (Tr. at 110-II). When the gun was found, Valda-Ceja stated, “And he [the male agent] said, You said was no guns, that there was nothing here.” (Tr. at 111). The court notes that this statement attributed to Agent Cromer by Valda-Ceja makes no sense unless as testified by Agent Bowen the agents did not search the room until after Valda-Ceja started fidgeting and they asked him about weapons being in the room which he denied. (Tr. at 16-17). Valda-Ceja did state that he denied knowing about the gun after the agents found the weapon. Then, according to him, the agents came very close to him and asked permission to search. They were intimidating. (Tr. at III). They told him if he cooperated, nothing would happen to him, but if not, they would call immigration. (Tr. at 111). After an hour, Valda-Ceja said that he gave verbal permission to search but that he did not sign the form until later when the agents told him to sign it. (Tr. at 111— 12, 116, 118). The court has already noted that the amount of time that Valda-Ceja claims the agents spent with him in the bedroom to obtain consent simply is inconsistent with all of the other testimony and events on April 29, 2009. In fact, he asserts that it was another hour later when he eventually signed the consent to search form. Agent Bowen testified that the form was signed at approximately 8:36 a.m. (Tr. at 71, 112). Valda-Ceja’s recounting of the events on April 29, 2009, is simply not believable. And, as noted, the court will not consider his testimony in analyzing Defendants’ motions to suppress. Additional facts will be set forth as necessary during the discussion of Defendants’ claims. II. Discussion a. Search of Residence Defendants Anaya-Medina/Cokis [Docs. 302 and 437] and Cruz-Plancarte/ Valda-Ceja [Docs. 322 and 439] contend that the warrantless search of the residence violates their Fourth Amendment rights because Valda-Ceja’s consent to search the residence was involuntary. Defendant Cruz-Loya/Loza-Cruz [Docs. 297 and 442], citing the Supreme Court decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), contends that the search of the residence violates his Fourth Amendment rights, regardless of any consent by one of the other Defendants, because he specifically refused consent for the agents to enter the residence. The Government responds contending that Valda-Ceja, a co-tenant in the residence, who had authority to consent, voluntarily consented to the agents’ entry into the residence and to the subsequent search of the residence. [Doc. 466]. And, although the Government agrees not to introduce evidence obtained from the bedroom in which Loza-Cruz slept, the Government does not otherwise address the binding legal authority set forth in Randolph which appears, as Loza-Cruz contends, to require suppression of any evidence found in the residence as to Loza-Cruz. The Government relies on the consent to enter the residence and subsequently to search the residence obtained from Valda-Ceja to justify the warrantless search. [Doc. 466 at 8], “It has been long recognized that police officers, possessing neither reasonable suspicion nor probable cause, may nonetheless search [a residence] without a warrant so long as they first obtain the voluntary consent [for the search].” United States v. Blake, 888 F.2d 795, 798 (11th Cir.1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). “Whether a suspect voluntarily gave consent to a search is a question of fact to be determined by the totality of the circumstances.” Blake, 888 F.2d at 798 (citing Schneckloth, 412 U.S. at 249-50, 93 S.Ct. at 2059); see also United States v. Nuyens, 17 F.Supp.2d 1303, 1306 (M.D.Fla.1998) (“Voluntariness of consent is a question of fact, and the Court must look to the totality of the circumstances.”). “The government bears the burden of proving both the existence of consent and that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily.” Blake, 888 F.2d at 798 (citing United States v. Massell, 823 F.2d 1503, 1507 (11th Cir.1987)); see also United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir.2001) (“A consensual search is constitutional if it is voluntary; if it is the product of an ‘essentially free and unconstrained choice.’ ”) (citation omitted). Factors in assessing voluntariness include: “ ‘voluntariness of the defendant’s custodial status, the presence of coercive police procedure, the extent and level of the defendant’s cooperation with police, the defendant’s awareness of his right to refuse to consent to the search, the defendant’s education and intelligence, and, significantly, the defendant’s belief that no incriminating evidence will be found.’ ” Blake, 888 F.2d at 798 (citations omitted); see also Purcell, 236 F.3d at 1281 (same). However, “the government need not establish [defendant’s] knowledge of the right to refuse consent ‘as the sine qua non of effective consent.’ ” United States v. Zapata, 180 F.3d 1237, 1241 (11th Cir.1999) (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996)). And, contrasting the test for the waiver of “rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment,” Schneckloth, 412 U.S. at 241, 93 S.Ct. at 2055, the Supreme Court explained that, while a consent to search must be voluntary, it need not be “ ‘an intentional relinquishment or abandonment of a known right or privilege,’ ” that is, knowing and intelligent. Id. at 241-46, 93 S.Ct. at 2055-56 (citation omitted); see also Tukes v. Dugger, 911 F.2d 508, 516 (11th Cir.1990) (same). According to the former Fifth Circuit in United States v. Elrod, 441 F.2d 353 (5th Cir.1971), a case decided before Schneckloth, “[t]he question [whether an individual has validly consented to a search] is one of mental awareness so that the act of consent was the consensual act of one who knew what he was doing and had a reasonable appreciation of the nature and significance of his actions.” Id. at 355. Nonetheless, that standard does not, after Schneckloth, mean that a voluntary consent to search requires a comprehension of Fourth Amendment rights. United States v. Jennings, 491 F.Supp.2d 1072, 1078-79 & n. 3 (M.D.Ala.2007). And, as the Seventh Circuit Court of Appeals stated, “A third party with common authority over the premises [or effects] sought to be searched may provide such consent.... Common authority is based upon mutual use of property by persons generally having joint access or control.” United States v. Aghedo, 159 F.3d 308, 310 (7th Cir.1998) (citations omitted); accord United States v. Fernandez, 58 F.3d 593, 597-98 (11th Cir.1995). As noted by the Supreme Court, “[c]ommon authority is, of course, not to be implied from the mere property interest a third party has in the property ... but rests rather on the mutual use of the property by persons generally having joint access or control for most purposes.... ” United States v. Matlock, 415 U.S. 164, 171-72 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974); see also United States v. Backus, 349 F.3d 1298, 1299 (11th Cir.2003) (same). Furthermore, “a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of entry, reasonably believed possessed common authority over the premises, even if the third party does not in fact possess such authority.” United States v. Fernandez, 58 F.3d 593, 597 (11th Cir.1995); see also United States v. Brazel, 102 F.3d 1120, 1148 (11th Cir.1997). “As with other factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)); see also United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.2008) (same). It is the Government’s burden to establish that Valda-Ceja had actual authority or apparent authority to consent to the searches. See Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797. The validity of the search as to Cokis and Valda-Ceja depends on the voluntariness of Valda-Ceja’s consent. Based on the totality of the circumstances, the court finds that Valda-Ceja’s consent to allow the agents into the residence and to subsequently search the residence was voluntary. On April 29, 2009, at approximately 8:00 a.m., federal agents arrived at 2265 Ranch Trail, Norcross, seeking to execute an arrest warrant for a person known to them as Cokis. (Tr. at 7-9, 54-55, 73). Eleven to thirteen agents surrounded the residence, and three of those agents, two with weapons holstered and the third with a long gun on strap pointing towards the ground, knocked at the front door. (Tr. at 9-10, 14, 38-39, 56). When the door was eventually answered at approximately 8:30 a.m., by Loza-Cruz, Agent Bowen, in Spanish, identified herself and asked Loza-Cruz if there was anyone else in the residence. (Tr. at 10-11, 41, 57, 77-78). When Loza-Cruz responded, yes, she asked that the others come to the door, and then she asked that the four men exit the residence. (Tr. at 11-12, 57-58). As the men exited, no weapons were drawn and no one was handcuffed. (Tr. at 14, 51, 58). The agents tried to identify each man and asked for identification. (Tr. at 13, 43, 59-60, 76). When Agent Bowen determined that one of the men, Valda-Ceja, appeared cooperative, she asked to speak with him away from the other men. (Tr. at 13, 76). She and Agent Cromer spoke with Valda-Ceja, who conversed with them for the most part in English. (Tr. at 13-14, 63). Valda-Ceja identified the other men and claimed ownership of the ear parked on the driveway. (Tr. at 14-15, 63-64). The agents asked to see the registration which Valda-Ceja stated was in his bedroom in the house. (Tr. at 15, 64). Valda-Ceja agreed to show the registration to the agents and to allow them to accompany him into the residence to obtain the paperwork. (Tr. at 15, 64-65). Over the objection of LozaCruz, who did not want the agents in the residence, Valda-Ceja stated that the agents could come inside because he did not have anything to hide. (Tr. at 15, 80). As they entered, Agent Bowen also asked if other agents could look through the residence to be sure no one else was inside, and Valda-Ceja agreed. (Tr. at 15, 65-66). According to Agent Bowen, during this ten to fifteen minute conversation, Valda-Cruz was not handcuffed, and the agents did not have weapons drawn. (Tr. at 45, 64). Nothing about the circumstances of the initial interaction between the agents and Defendants, especially Valda-Ceja, establish that his consent to allow the agents into the residence or to conduct the protective sweep was coerced. The fact that Valda-Ceja and the other men were being detained for the purpose of identifying Cokis to execute the arrest warrant (Tr. at 85) does not alter this finding. Factual situations involving a much greater show of force and restraints on suspects have not been found sufficiently coercive to invalidate consents to enter residences or to search. See, e.g., United States v. Kimoana, 383 F.3d 1215, 1225-26 (10th Cir.2004) (although “officers entered the motel room with guns drawn, raising their voices at the occupants and ordering them to put them hands where the officers could see them[,]” the trial court found that “[a]fter performing a pat down, the officers put their weapons back in their holsters, the atmosphere was described as ‘calm,’ and then [the officer] ‘immediately’ asked [the defendant] for consent to search the room[;]” therefore, when the consent to search was obtained, the situation had calmed down and no show of force was being exhibited); United States v. Taylor, 31 F.3d 459, 463-64 (7th Cir.1994) (“The record shows that the initial melee of agents, badges and weapons, necessary to protect the safety of the agents ..., dissipated only seconds after it had begun and that all was routine once the premises had been secured. Though certainly unpleasant, there is nothing so inherently coercive about such tactics, commonly used where a danger to life or limb is perceived by law enforcement agents, to render subsequent cooperation involuntary.”); United States v. Hidalgo, 7 F.3d 1566, 1570-71 (11th Cir.1993) (facts that the defendant was arrested by “SWAT team members who broke into his home in the early morning, woke him, and forced him to the ground at gunpoint” did not establish consent to search was involuntary, even though consent was given after invocation of Miranda rights); United States v. Garcia, 890 F.2d 355, 360-62 (11th Cir.1989) (the court found voluntary a consent to search which was given after the defendant was arrested by numerous officers, patted down for weapons and a protective sweep of his house was conducted and after he was seated in his living room in handcuffs, given his Miranda rights, and the officers had refused to accept a limited consent). Valda-Ceja’s consent allowing the agents to enter the residence and to conduct the protective sweep was voluntary. Likewise, nothing about the events that occurred once the agents and Valda-Ceja entered the residence and went to his bedroom establishes that the consent to search the residence was involuntary. After Valda-Ceja found the registration form, as the agents were discussing the form with him and continuing to ask him about the other occupants, he began fidgeting and moving on the bed. (Tr. at 16, 46-47, 67-68). The agents were concerned about his actions, and Agent Cromer asked him if there was anything, such as guns, in the room that the agents needed to know about. (Tr. at 16, 47). When Valda-Ceja responded, no, the agent asked if they could search the room for his and their safety. He responded, yes. (Tr. at 16, 47-48, 68). That search revealed a handgun in the open closet a few feet from Valda-Ceja’s location on the bed. He denied knowledge of the firearm. (Tr. at lb-17, 48-49, 68-70). Valda-Ceja denied knowing of any other guns in the residence. (Tr. at 17, 49). The agents then asked for consent to search for guns, drugs and large amounts of currency in the residence. After Agent Bowen explained to Valda-Ceja that the previous walk through to look for other occupants was not a search, he agreed to the search. (Tr. at 17, 49-50, 70-71). He was provided with a consent to search form, which he was asked to read. Valda-Ceja then signed the form. (Tr. at 17-19, 71; Gov’t Ex. 1). The agents conducted a search of the residence finding additional firearms, some drugs, packaging materials, cell phones and various documents. (Tr. at 21-80). Although Agent Barnes, who had the long gun, stood outside the bedroom doorway while Agents Bowen and Cromer spoke with Valda-Ceja, he did not participate in the conversation with Valda-Ceja. Agents Bowen and Cromer had their weapons holstered. And Defendant was not handcuffed. (Tr. at 45^16, 50, 56, 70). Contrasted with the facts in other cases which courts have found did not invalidate the voluntariness of a consent to search, nothing in the events surrounding Valda-Ceja’s consent to search was sufficiently coercive to result in a finding that his consent was involuntary. In United States v. Strickland, 245 F.3d 368 (4th Cir.2001), the Fourth Circuit Court of Appeals refused to find that a consent to search was involuntary. In Strickland, officers arrived at the defendant’s residence at 6:30 a.m. and unsuccessfully attempted to wake him by pounding on the door and the side of the trailer. They, therefore, broke open the front door, entered, and handcuffed both the defendant’s wife and the defendant, who at the time was dressed only in his underwear. Both were seated, handcuffed, in the living room-the defendant still in his underwear. The agents asked if there were any weapons in the residence or any more marijuana, the agents having seen the latter on a kitchen counter. The defendant pointed out the location of a firearm and responded negatively to the question about additional marijuana. The agents then asked for consent to search the residence, and both the defendant and his wife consented. Id. at 382-83. The court upheld the consent finding that the officers did not use any force other than that necessary to effect the entry into the residence and to arrest the defendant and that no facts indicated that the defendant was coerced into consenting to the search. Id. See also United States v. Guiterrez, 92 F.3d 468, 470-71 (7th Cir.1996) (the circumstances surrounding the consent, including approximately a dozen federal agents entering the premises with weapons drawn, handcuffing the individuals present and ordering them up against the wall, including the defendant, and the fear of being arrested, was not so inherently coercive to render the consent involuntary); United States v. Espinosa-Orlando, 704 F.2d 507, 512-13 (11th Cir.1983) (the court found that the consent to search was voluntary although the defendant had been detained and placed on the ground by armed officers and although one of the officers still had his weapon drawn pointed away from the defendant at the ground, because there was no abusive language used and no threats, because the request was made in a conversational tone, and because the defendant was not handcuffed or removed from the scene of the stop and detention). The facts establish that Valda-Ceja was cooperative with the agents from the initial encounter and throughout the time spent at the residence. No credible evidence establishes that the agents threatened Valda-Ceja to obtain his cooperation or the consent to search. He, in fact, in the face of Loza-Cruz’s objections to the agents entering the residence, told Loza-Cruz that the agents could enter because he did not have anything to hide inside. (Tr. at 15, 80). He repeatedly denied being aware of any firearms or other contraband in the residence indicating that he had no reason to refuse to allow the search of the residence. For these reasons, the court finds that Valda-Ceja’s consent to search was voluntary. As to Defendants Anaya-Medina/Cokis and Cruz-Plancarte/Valda-Ceja, the evidence found in the residence is admissible at trial. However, the same result does not apply to Defendant Cruz-Loya/LozaCruz. In Randolph, 547 U.S. 103, 126 S.Ct. 1515, the Supreme Court addressed a situation not present in its earlier decisions addressing third party consents to search, that is, the impact of a present and objecting co-tenant to the search. In Randolph, Janet Randolph, the defendant’s wife, who had recently returned to the marital residence after moving out, advised police that she and her husband had a domestic dispute and that the defendant had taken her son and left him at another location. She also advised officers that the defendant used cocaine causing financial problems. Id. at 106-07, 126 S.Ct. at 1519. The defendant arrived at the residence and explained about removing the child, and he also denied drug use accusing his wife of the drug use. Id. at 107, 126 S.Ct. at 1519. Shortly thereafter, Janet Randolph advised officers that there were “items of drug evidence” in the house. When the defendant was asked for his consent to search the residence, he “unequivocally” refused. Id. The officer then asked Janet Randolph for consent which she “readily” gave, and she assisted the officer in locating an item of evidence before subsequently withdrawing her consent. Id. The defendant moved to suppress the evidence seized from the residence. Id. On these facts, and specifically not undercutting the rulings in Matlock, 415 U.S. at 171-72 n. 7, 94 S.Ct. at 993 n. 7, and Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, the Supreme Court held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Randolph, 547 U.S. at 120, 126 S.Ct. at 1526; see also United States v. Hams, 526 F.3d 1334, 1339 (11th Cir.2008) (same). Recognizing that the decision in Matlock involved a situation where the defendant was not present with an opportunity to object because he was in police custody close by and that Rodriguez involved a situation where the defendant was asleep in the residence and could have been roused before the consent was obtained but was not, the Supreme Court acknowledged that it “drew a fine line” and concluded: “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Randolph, 547 U.S. at 121, 126 S.Ct. at 1527. LozaCruz falls precisely within the category of objecting defendants, with a self-interest in objecting, who stand at the door of the residence and object to the agents’ entry. When Agent Bowen asked the four men to exit the residence, Loza-Cruz asked her if she had a warrant. (Tr. at 11, 58, 78). After the agent responded, no, he stated that the agents could not come into the residence. And as he exited the residence, Loza-Cruz closed the door. (Tr. at 11, 78). He explicitly stated and demonstrated his refusal to allow agents into the residence. Then, subsequently, as the agents started to enter the residence with Valda-Ceja, Loza-Cruz stated, “you know, I don’t want them in the house.” (Tr. at 15, 80). Loza-Cruz affirmed his objection to the agents’ entry. And Valda-Ceja’s consent to the entry and search, which was disputed by LozaCruz, “without more, [gave the agents] no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Randolph, 547 U.S. at 114-15, 126 S.Ct. at 1523. As the Supreme Court stated, “[T]he cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.” Id. at 115, 126 S.Ct. at 1523; see also United States v. Travis, 311 Fed.Appx. 305, 310 (11th Cir.2009) (“Where co-tenants are present at the entrance, and one consents while the other objects, police may not search.”). As was true in Randolph, “[t]his case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Randolph, 547 U.S. at 122-23, 126 S.Ct. at 1528. Loza-Cruz’s Fourth Amendment rights were violated by the warrantless search of the residence; therefore, no evidence seized during the warrantless search, from any areas within the residence, may be used against him at trial. For these reasons, the court RECOMMENDS that Defendant Anaya-Medina/Cokis’ motion [Doc. 302] and Defendant Cruz-Plancarte/Valda-Ceja’s motion [Doc. 322] to suppress evidence be DENIED and that Defendant Cruz-Loya/Loza-Cruz’s motion [Doc. 297]to suppress evidence be GRANTED. b. Statements Defendants Anaya-Medina/Cokis and Cruz-Loya/Loza-Cruz also argue that the voice exemplars taken on April 29, 2009, prior to their being advised of their Miranda rights violated their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. [Docs. 297 and 301]. Neither Defendant specifically addresses the statements made after being advised of their Miranda rights. And, although an issue that needs to be addressed and seemingly raised in his motion to suppress [Doc. 297 at 1-2], Loza-Cruz did not present any argument in his post-hearing brief regarding the potential taint on his statements flowing from the unlawful search of the residence. Based on the arguments presented by Defendants, the Government’s response to the motions to suppress statements focuses on the voice exemplars taken prior to Defendants being advised of their Miranda rights. The Government’s contention is that neither Defendant was subjected to custodial interrogation. [Doc. 466 at 10-12], Significantly, the Government will only use the voice exemplars for the purpose of identification. 1. Fruit of the Poisonous Tree Although left unaddressed by either Defendant Cruz-Loya/Loza-Cruz or the Government, the court believes that the issue of whether the voice exemplar and/or the post-Miranda statement given by Defendant should be suppressed as fruits of the unlawful search of the residence deserves the attention of the court. Loza-Cruz’s Fourth Amendment right to be free from a warrantless search of his residence was undisputedly violated by the agents’ entry into and search of the residence over his clearly stated and repeated objection. In both the case of the voice exemplar and Defendant’s Miranda waiver and statement, the question for this court is whether: “[Granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ... [This court is] obliged to determine whether the [statement and] consent [were] “sufficiently an act of free will to purge the primary taint of the unlawful invasion,” or, alternatively, whether the causal connection had “become so attenuated as to dissipate the taint.” United States v. Delaney, 502 F.3d 1297, 1309 (11th Cir.2007) (quoting Wong Sun v. United States, 371 U.S. 471, 486-87, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963) (citations and internal quotations omitted)); see also United States v. Lopez-Garcia, 565 F.3d 1306, 1315 (11th Cir.2009) (same). The Supreme Court, as well as the Eleventh Circuit Court of Appeals, has generally applied three factors to determine whether a prior illegality has become sufficiently attenuated from the evidence sought to be introduced: “ ‘[t]he temporal proximity of the [illegal search] and the confession [or consent], the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct.’ ” Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 73 L.Ed.2d 314 (1982) (citation omitted); see also Lopez-Garcia, 565 F.3d at 1315 (same); United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir.2003) (same). The court’s application of these factors and the determination “whether there is a nexus between the evidence in question and the police conduct ... is essentially a common sense evaluation of the facts and circumstances of the particular case.” United States v. Kapperman, 764 F.2d 786, 793 (11th Cir.1985); see also Delaney, 502 F.3d at 1310 (“Moreover, we will not allow a factor-based analysis to obscure the underlying question, which ‘generally involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant’s response.’ ”) (citation omitted). With respect to the voice exemplar, these factors need not be addressed in detail because the court finds that the voice exemplar, taken for the purpose of assisting in the identification of the men who exited the residence, particularly to identify Cokis for whom an arrest warrant had been issued, was not obtained “ ‘by exploitation of ” the illegal search of the residence but “ ‘by means sufficiently distinguishable to be purged of the primary taint.’ ” Delancy, 502 F.3d at 1309 (citation omitted). Given the reason for taking the voice exemplars, whether the residence was searched or not, the court finds that the exemplars would have been and, as discussed infra, could have been obtained. The search of the residence and the items found therein did not cause the exemplars to be obtained. The fact of the arrest warrant for Cokis and, the court infers, the intent to determine whether any of other occupants of the residence had been captured on the various wire intercepts, caused the exemplars to be obtained. For this reason, the court finds that the voice exemplar of Loza-Cruz does not constitute fruits of the illegal search of his residence. With respect to his post-Miranda statements, the court reaches a contrary conclusion. In the case of a statement following an illegal arrest, the Supreme Court in Taylor noted it was “firmly established that the fact that the confession may be ‘voluntary’ for purposes of the Fifth Amendment, in the sense that Miranda warnings were given and understood, is not by itself sufficient to purge the taint of the illegal arrest [or search].” Taylor, 457 U.S. at 690, 102 S.Ct. at 2667. This court, although the facts herein differ, likewise finds that, even if Loza-Cruz was advised of and voluntarily, knowingly and intelligently waived his Miranda rights, such a finding does not in and of itself purge any taint from the illegal search. Applying the factors in Taylor, in fact, results' in the conclusion that the waiver and statement were not sufficiently attenuated from the illegal search to purge the taint of that illegality. First, as the Eleventh Circuit Court of Appeals has acknowledged, “there is no hard-and-fast rule for determining how much time must have passed before the link between an unlawful [search] and a confession can be considered sufficiently attenuated.” Lopez-Garcia, 565 F.3d at 1315. In Lopez-Garcia, the court held that “the temporal proximity between the two events [therein] is limited” because the illegal arrest took place a day before the statements were obtained. Id. In reaching this conclusion, the court stated, “[W]e have observed that the amount of time found sufficient to meet the temporal proximity factor ranges from immediate or close in time, to three minutes, to two hours.” Id. (citations and internal quotations omitted); and see Chanthasouxat, 342 F.3d at 1280 (noting that period of three minutes between illegal search and statements “favored exclusion”). In this case, Lopez-Cruz’s waiver of Miranda rights, which occurred at 10:17 a.m. (Tr. at 31) with his statement immediately being taken (Tr. at 35-36, 82-83), followed closely upon the illegal search of the residence, which began sometime after the consent to search was signed at 8:36 a.m. (Tr. at 71) and which continued for some undisclosed period of time but may very well have been ongoing while Loza-Cruz was being questioned inside the residence. This factor favors exclusion. Likewise, the second factor, the presence — or absence — of intervening circumstances, supports exclusion of the evidence. The very same agents who entered the residence over Loza-Cruz’s objection and obtained the consent to search participated in the questioning of Loza-Cruz, and the topic of the questioning, Loza-Cruz’s association with the residence and the other occupants, was linked to the illegal search. Cf. Lopez-Garcia, 565 F.3d at 1316 (finding intervening circumstances because different agents conducted the interview from those effecting the illegal arrest and because the topic of the interview, the defendant’s immigration status, differed from the subject of his arrest, drugs). Finally, the purpose and flagrancy factor also supports finding the waiver and statement were tainted by the arrest. Although Loza-Cruz explicitly stated to the agents that they could not enter the residence without a warrant and firmly closed the door behind him as he exited, the agents still entered the residence and conducted a search — granted with the consent of another resident. (Tr. at 11, 14-20, 58, 64-71, 78, 80). And, although Agent Bowen indicated that she did not honor LozaCruz’s refusal to allow agents into the residence because she did not know if he rented the house or who had authority to give consent (Tr. at 78), she could have easily determined, before going into the residence, that Loza-Cruz had just as much right to exclude the agents as Valda-Ceja had to allow them inside and that, therefore, the agents should have honored Loza-Cruz’s refusal. The facts before the court indicate that the agents simply ignored Loza-Cruz’s assertion of his Fourth Amendment rights in hopes of securing, as they did, the consent of another of the tenants to gain entry and the opportunity to search. For these reasons, the court finds that Loza-Cruz’s waiver of rights and post-Miranda statements constitute fruits of the illegal search of the residence and the violation of his Fourth Amendment rights and that the Government cannot use the statements at trial against him. 2. Voice Exemplars Defendants Anaya-Medina/Cokis and Cruz-Loya/Loza-Cruz contend that taking the voice exemplars while they were allegedly in custody violated their Fifth Amendment right to remain silent and Sixth Amendment right to counsel. Before addressing the substance of these claims, the court notes that Loza-Cruz’s Sixth Amendment right to counsel had not attached at the time of his statements, either before or after being advised of Miranda rights, on April 29, 2009. He had not been charged in any manner, not even by criminal complaint, with any criminal activity. See United States v. Alvarado, 440 F.3d 191, 199-200 (4th Cir.2006) (because the Sixth Amendment right to counsel does not attach until a criminal prosecution begins, as opposed to during criminal investigations, the court held that the Sixth Amendment right to counsel does not attach with the filing of a criminal complaint) (citing cases, including United States v. Langley, 848 F.2d 152, 153 (11th Cir.1988)); Lumley v. City of Dade City, Florida, 327 F.3d 1186, 1195 (11th Cir.2003) (same). Therefore, only LozaCruz’s Fifth Amendment right to counsel,' if invoked during custodial interrogation, is applicable. The situation as to Cokis is less clear. He had been indicted but had not yet appeared before a judicial officer. In Fellers v. United States, 540 U.S. 519, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004), the Supreme Court suppressed statements intentionally elicited by officers made by an indicted individual, prior to his appearance before a judicial officer, who did not have counsel present and who had not waived his right to presence of counsel. Id. at 523-24, 124 S.Ct. at 1022-23. Citing Supreme Court precedent, the Court stated, “We have held that an accused is denied ‘the basic protections’ of the Sixth Amendment ‘when there [is] used against him at his trial evidence of his own incriminating words, which federal agents ... deliberately elicited from him after he had been indicted and in the absence of his counsel.’ ” Id. at 523, 124 S.Ct. at 1022 (citation omitted). However, in Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), the Supreme Court, resolving an issue involving wh