Opinion
CV 98-3028 (RR)
June 5, 2001
JUAN ABREU, Coxsackie Correctional Facility Coxsackie, New York 12051, Petitioner, Pro Se.
HONORABLE CHARLES J. HYNES, KINGS COUNTY DISTRICT ATTORNEY Brooklyn, N.Y. 11201-2908, By: Camille O'Hara Gillespie, Assistant District Attorney, Attorney for Respondent.
Memorandum AND ORDER
Juan Abreu, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 1998). Abreu was found guilty in 1988 after a jury trial in New York Supreme Court, Kings County, of Criminal Possession of a Controlled Substance in the First and Third Degrees, see N.Y. Penal Law §§ 220.21[l], 220.15[1] (McKinney 2000), and Criminal Possession of a Weapon in the Fourth Degree, see N.Y. Penal Law § 265.01 [1] (McKinney 2000). Because Abreu fled during jury selection, the verdict was returned in his absence. A fugitive for many years, Abreu was finally sentenced on September 8, 1995 to concurrent prison terms of fifteen years to life for first-degree drug possession, eight and one-third to twenty-five years for third-degree drug possession, and one year for weapon possession. In challenging his conviction before this court, Abreu asserts that the trial court erred in refusing to suppress evidence secured in violation of the Fourth Amendment. Respondent submits that this claim is barred from collateral federal review by the Supreme Court holding in Stone v. Powell, 428 U.S. 465, 482 (1976). Having carefully reviewed the submissions of the parties, as well as relevant sections of the proceedings in the state courts, this court agrees that Stone v. Powell mandates the dismissal of Abreu's petition.
Factual Background
1. Abreu's Arrest for Drug and Weapon Possession
Petitioner Juan Abreu was arrested on October 9, 1987 when New York City Police officers executed a search warrant on Apartment 2R at 175 Norwood Avenue in Brooklyn. The warrant had been issued earlier that day by Supreme Court Justice Alan Marrus who heard from both a New York City Police Officer and a police informant that drugs were routinely being dealt from the subject premises. When police entered the subject apartment, they found a sawed-off shotgun behind the entrance door. Meanwhile, Abreu was alone inside a bedroom from which approximately eight ounces of cocaine were recovered, some of it in plain view. Police also seized a notebook with the name "Juan" on it that appeared to record drug transactions.
2. The Motion to Suppress Evidence Seized Pursuant to Search
Prior to trial, Abreu moved to suppress the gun and drugs seized from the apartment on the grounds that the search warrant had not been supported by probable cause. Supreme Court Justice Michael R. Juviler conducted a hearing at which he reviewed the warrant application, heard testimony from the police officer/affiant, and reviewed the transcript of the application proceedings before Justice Marrus. This evidence revealed that throughout 1987 police had received at least a dozen citizen complaints of round the-clock drug trafficking at 175 Norwood Avenue, a building with four apartments over a storefront. Certain citizen complaints indicated that the drugs dealt at 175 Norwood Avenue were supplied from 168 Norwood Avenue. In the nine months preceding the search warrant, police made nineteen arrests for cocaine sales in the vicinity of these buildings. Three of the arrests were for sales occurring in the hallway of 175 Norwood Avenue; two arrests were for sales occurring in an alley adjacent to 168 Norwood Avenue. Further supporting the warrant was information supplied by a confidential informant who appeared personally before Judge Marrus. That informant disclosed that the "second floor right apartment of 175 Norwood Avenue" was used twenty-four hours per day, seven days per week to deal drugs. The informant had been in the apartment more than fifty times in the ten months preceding the warrant, his most recent visit occurring within two to three weeks of the application. As a result, he was able to provide detailed information about the workings of the operation, explaining that three shifts operated daily out of the subject apartment. Each shift started with forty bundles of cocaine supplied from 168 Norwood Avenue; each bundle contained ten packages that sold for $20.00 each. The informant explained that no one lived in the subject apartment; it was used exclusively for "business."
To challenge this evidence, Abreu requested that the informant be produced as a hearing witness. Justice Juviler denied the motion, but did hear testimony from the defendant himself, particularly on the issue of his standing to challenge the search. Abreu did not assert any proprietary or residential interest in the apartment. Specifically, he did not claim to be an overnight guest. Rather, he testified that he had come to the apartment the day of his arrest at the invitation of a friend to drink beer. He explained that he was alone in the apartment at the time of the police entry because his friend had gone out to get them some food. He had locked the door when he heard the police outside only because his friend had instructed him to do so.
In a written decision, see People v. Abreu, Ind. #9081/87 (Sup.Ct. Kings Co., Nov. 10, 1988), Justice Juviler ruled that Abreu had sufficient "authority" to keep others out of the apartment to confer standing on him to challenge the police search. Nevertheless, the judge found from the totality of circumstances that ample probable cause supported the warrant. He specifically noted that the informant had been in the apartment more than fifty times. His description of the drug operation was remarkably detailed and consistent with information independently developed by the police from civilian complaints and neighborhood arrests. Further, by appearing with police officers before the judge who issued the warrant, the informant put himself in a situation where he could be prosecuted criminally if he gave false information. The motion to suppress was denied.
3. Appellate Review
In challenging his conviction on appeal, Abreu raised the same Fourth Amendment argument as on his motion to suppress. The Appellate Division, Second Department, unanimously affirmed the conviction, finding that Abreu lacked standing to challenge the search warrant since he was "merely an occasional visitor in the apartment . . . . [with] no legitimate expectation of privacy in the premises searched." People v. Abreu, 239 A.D.2d 424, 657 N.Y.S.2d 750 (2d Dep't 1997) (citations omitted).
Abreu's motion for leave to appeal to the New York Court of Appeals was summarily denied on August 13, 1997. See People v. Abreu, 90 N.Y.2d 901 (1997) (Ciparick, J.).
4. Federal Petition
In papers dated March 9, 1998, Abreu filed his petition for a writ of habeas corpus with this court.
Discussion
Abreu asserts that the trial court erred in failing to suppress the gun and drugs seized from the subject apartment on the date of his arrest. Specifically, he complains that (1) the informant was unreliable, and (2) the trial court erred in not requiring him to be produced as a witness at the suppression hearing.
This claim cannot be considered on a petition for a writ of habeas corpus. In Stone v. Powell, 428 U.S. 465, 482 (1976), the Supreme Court removed Fourth Amendment search and seizure claims from federal habeas review as long as a state provides "an opportunity for full and fair litigation" of the claims. New York clearly provides the opportunity for such review through N.Y. Crim. Proc. Law § 710 (McKinney 1995). See Capellan v. Riley, 975 F.2d 67, 70 n. 1 (2d Cir. 1992). Indeed, Abreu availed himself of this procedure in moving to suppress evidence seized pursuant to what he contended was an unlawful warrant.
A liberal reading of Abreu's papers suggests that he faults the state review process for not requiring the informant to appear before the court. The Second Circuit has recognized the possibility that an "unconscionable breakdown" in an otherwise acceptable state process for review of Fourth Amendment claims may warrant federal habeas review of the merits. See Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc). But a trial court's decision not to require the appearance of a confidential informant is not the sort of "breakdown" to which the Court of Appeals was referring. In Gates, the court cited to the notorious circumstances in Frank v. Mangum, 237 U.S. 309 (1915), wherein, over the dissents of Justices Holmes and Hughes, the Supreme Court refused to grant a writ of habeas corpus to a petitioner convicted of murder in a state trial claimed to have been dominated by an angry mob. It also cited to a law review article see Bator, Finality in Criminal Law and Federal Habeas Corpus for States Prisoners, 76 Harv. L. Rev. 441, 456-57 (1963), in which situations such as the bribing of a trial judge, the government's knowing use of perjured testimony, or the use of torture to extract a guilty plea, all without opportunity to obtain state review, are cited as circumstances justifying federal habeas inquiry. In short, an unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society. Absent such extraordinary circumstances, a federal court has "no authority" to grant a writ of habeas corpus simply because it may disagree with the result of a state court on a Fourth Amendment question. Gates v. Henderson, 568 F.2d at 840.
In this case, the trial court did order the prosecution to make the informant available for the defense to call as a witness at trial. After speaking with the informant, defense counsel elected not to call him to the stand.
In fact, in this case, the court does not disagree with the Fourth Amendment rulings of the state court. In Minnesota v. Carter, 525 U.S. 83, 88- 90 (1998), the Supreme Court made plain that persons such as Abreu may not claim the protection of the Fourth Amendment simply because they are present on a premises with the consent of the owner. In any event, the totality of circumstances cited by the trial court amply supports the conclusion that probable cause supported the issuance of a search warrant. See Illinois v. Gates, 462 U.S. 213, 231-32 (l983) (holding that court must examine the "totality of the circumstances" in deciding whether information obtained from a confidential informant, even an informant with no established record for reliability, establishes probable cause).