Opinion
06 Cr. 529 (JSR).
September 25, 2006
MEMORANDUM ORDER
Defendant Billy Dee Taylor is charged with being a felon in possession of a weapon. By motion dated August 4, 2006, defendant moved to suppress certain statements made and physical evidence seized at an apartment at 137 West 141st Street on or about June 1, 2006 on the ground that they were obtained in violation of his Fourth Amendment rights. By Order dated September 1, 2006, the Court denied defendant's motion without the need for an evidentiary hearing. This Memorandum Order serves to reconfirm that ruling and briefly states the reasons therefor.
Except where noted, the pertinent facts are not in dispute. In late April 2006, Deputy United States Marshal Gregory Holmes, in New York, received a copy of criminal arrest warrants for defendant that had been issued in Georgia in connection with defendant's shooting at a law enforcement officer. Affidavit of Gregory Holmes dated August 22, 2006 ("Holmes Affidavit"), at ¶¶ 2-3. Holmes investigated the whereabouts of defendant and received credible information that defendant was residing in Apartment 60 at 137 West 141st Street (the "Apartment"), that the Apartment was leased to Sherry Rock, and that her son Bobby Rock, who was on parole from a narcotics conviction, was also residing in the Apartment. Id. ¶¶ 4-6.
In his Certificate of Release from prison, Bobby Rock had agreed not to "be in the company of" any person he knew to have a criminal record. Affidavit of James T. Ditucci-Cappiello dated August 16, 2006 ("Cappiello Affidavit"), at ¶ 5 Exhibit A. Bobby Rock had also agreed that he "fully under[stood] that [his] person, residence and property are subject to search and inspection," that he would "permit [his] Parole Officer to visit [him] at [his] residence," and that he would "reply promptly, fully and truthfully to any inquiry of or communication by [his] Parole Officer or other representative of the Division of Parole." Id.
Because Bobby Rock was potentially violating the terms of his parole by associating with defendant, Holmes contacted Parole Officer James T. Ditucci-Cappiello on the Regional Fugitive Task Force and, together with other officers on the task force, Holmes and Cappiello visited the Apartment on the morning of June 1, 2006. Holmes Affidavit ¶ 8; Cappiello Affidavit ¶ 7.
When the officers arrived outside the Apartment and before they knocked, a woman Holmes recognized as Sherry Rock opened the front door. Holmes Affidavit ¶ 9. The officers questioned her about the residents of the Apartment and went inside. Id. ¶ 10. After entering, Holmes and Cappiello saw a man who resembled Bobby Rock emerge from one of the bedrooms. Id. ¶ 10; Cappiello Affidavit ¶ 8. Cappiello questioned the man, confirmed that he was Bobby Rock, showed him a photograph of defendant, and repeatedly asked him whether he recognized defendant and whether defendant was in the Apartment, to which Bobby Rock repeatedly said no. Cappiello Affidavit ¶ 8.
In reality, when the officers arrived, defendant was asleep in a bedroom in the Apartment. Affidavit of Billy Dee Taylor dated August 2, 2006, at ¶ 2. Upon hearing the commotion created by the officers' arrival, defendant got up and walked out into the living room. Id. ¶ 3. When they saw defendant, the officers arrested him, removed him from the Apartment, and detained him in the hallway of the building. Holmes Affidavit ¶¶ 11-12; Cappiello Affidavit ¶ 9. Cappiello also arrested Bobby Rock for violating the terms of his parole. Cappiello Affidavit ¶ 9.
The other officers conducted a protective sweep of the Apartment and Holmes heard one of them call out a code indicating that the officer had found a firearm in a bedroom. Holmes Affidavit ¶ 11. Holmes states he then went to the bedroom "within seconds" of hearing the officer call out the code and saw the gun in plain view on top of a dresser. Id. Derrick Rock, a 15-year-old, said that he shared that bedroom with defendant and that the gun belonged to defendant. Id. ¶ 12. After orally waiving his Miranda rights, defendant confirmed that the gun belonged to him. Id. ¶ 13.
In his initial affidavit (dated August 2, 2006) submitted in support of the instant motion, defendant did not dispute whether the gun was found in plain view but simply stated that "[a]fter 45 minutes, a police officer said he had found a gun." Affidavit of Billy Dee Taylor dated August 2, 2006, at ¶ 5. Subsequently, however, defendant submitted a second affidavit (dated August 16, 2006), in which he stated that "[a]pproximately 45 minutes after they entered the apartment, the [unnamed] law enforcement officers informed [him] that a gun was seized from inside a jacket in a bedroom closet." Affidavit of Billy Dee Taylor dated August 16, 2006, at ¶ 3. However, even assuming arguendo the admissibility of this added hearsay, defendant still does not allege any personal knowledge of where the gun was found and does not allege that the unnamed officer or officers who allegedly told him that the gun was found in a jacket had any personal knowledge of where the gun was found. Yet the gun was found in plaintiff's bedroom and he subsequently admitted it was his; he was therefore in a position to know its whereabouts from his personal knowledge, and yet both of his affidavits are totally silent as to what he personally knew about the location of the gun. In such circumstances, defendant has failed to raise a material issue warranting an evidentiary hearing into whether the gun was in plain view.
Defendant also seeks, however, to suppress the gun and his incriminating statement about it on the ground that the Government's entry into the Apartment without a warrant violated defendant's Fourth Amendment rights, and that the gun and the statement were the fruits of this unlawful entry. The Government argues that the entry was a permissible home visit to a parolee, Bobby Rock, who had potentially violated the terms of his parole by associating with defendant. Defendant responds that the entry was not permissible as a home visit because the Government's "overriding objective . . . was to locate" defendant, not to interview Bobby Rock. Defendant's Reply Memorandum of Law at 8.
Defendant's argument is a variation on what the Second Circuit has called the "stalking horse" defense, which prohibits law enforcement officers from using a parole officer's ability to conduct warrantless searches as a device to gather evidence they would otherwise need a warrant to obtain. See United States v. Newton, 369 F.3d 659, 667 (2d Cir. 2004); United States v. Reyes, 283 F.3d 446, 462-65 (2d Cir. 2002). The Second Circuit has held, however, that as a general matter "the [stalking horse] doctrine is not a valid defense in this Circuit." Reyes, 283 F.3d at 463.
Defendant argues that Newton and Reyes leave open the possibility of a stalking horse challenge where the parole officer is "`not . . . pursuing legitimate supervis[ion] objectives,'" Newton, 369 F.3d at 667 (quoting Reyes, 283 F.3d at 463), and further argues that the parole officer in this case was not pursuing a legitimate supervision objective when he entered the Apartment because, unlike in Newton and Reyes, the parole officer was principally pursuing a third party — defendant — and not the parolee Bobby Rock.
Reyes, however, found it "difficult to imagine a situation" in which a parole officer who entered a residence with other law enforcement officials based on "information about a supervisee's illegal activities . . . would not be pursuing legitimate supervised release objectives." Reyes, 283 F.3d 463. Here, in any event, Parole Officer Cappiello had a reasonable basis to suspect that Bobby Rock was associating with a person with a criminal record — namely, defendant — in violation of his parole, and thus was pursuing legitimate supervision objectives when he entered Bobby Rock's residence with the task force.
Following this permissible entry and defendant's arrest, the officers conducted a permissible protective sweep and permissibly seized the gun that was in plain view on top of a dresser in a bedroom. Accordingly, the Court reconfirms its prior ruling denying defendant's motion to suppress.
SO ORDERED.