Opinion
02 Cr. 1185 (RPP)
March 5, 2003
OPINION AND ORDER
Defendant Henry Boone ("Defendant") moves this Court for an order 1) suppressing all physical evidence seized on or about June 5, 2002; 2) suppressing any statements made by Defendant on or about June 5, 2002 and other fruits of his arrest; and 3) compelling disclosure of the identity of the government's confidential informant prior to trial, pursuant toRoviaro v. United States, 353 U.S. 53 (1957). For the following reasons, Defendant's motion is denied.
Background
On or about June 5, 2002, officers executed a search warrant ("Search Warrant") issued by the Honorable Ralph Fabrizio of Criminal Court of the City of New York, County of the Bronx, for apartment #14H located at 1408 Webster Avenue, in the Bronx ("Apartment"). (See Search Warrant at 1.) The Search Warrant explicitly authorized the officers to enter the premises "without giving notice of [their] authority or purpose." (Id.) The Search Warrant authorized the seizure of, among other things, cocaine and other "evidence lending to demonstrate that the premises are utilized for the unlawful possession, packaging and sale of cocaine, and other drug paraphernalia." (Id.) The Search Warrant was based on an affidavit by Detective Mark Gossin of the New York City Police Department dated May 30, 2002 ("Gossin Affidavit") who described two separate purchases of cocaine from the Apartment leading up to the issuance of the Search Warrant. (See Gossin Aff. at 3-4) According to the Gossin Affidavit, on May 28, 2002 and again on May 29, 2002, a confidential informant who stated she had purchased narcotics in the Apartment on numerous occasions over the past two years, purchased cocaine at the Apartment from a tall, pregnant black female with blue hair. (See id.)
The Search Warrant is attached as Exhibit B to the Affirmation of Jennifer L. Brown, Esq., dated November 12, 2002 ("Brown Affm."), supporting Defendant's motion.
The Gossin Affidavit is also attached as Exhibit B to the Brown Affirmation.
In addition, prior to executing the Search Warrant, a police officer had spoken to "an individual who had seen a gun in the Apartment" and the officer knew a confidential informant who "purchased crack cocaine from [Defendant] on two prior occasions and told the police that [Defendant] sold crack cocaine out of the Apartment." (Complaint. ¶ 2(b); see also, Transcript at 43-44.)
The Complaint is attached as Exhibit C to the Brown Affirmation. Transcript citations refer to the transcript of the evidentiary hearing on Defendant's suppression motions held January 13, 2003.
After police entered the Apartment, members of the NYPD, who were outside the Apartment building, saw "an individual throw something from a bedroom in the Apartment." (Id. ¶ 2(c).) Officers inside the Apartment commenced a search, and Defendant and a woman named Shakema Lopez were inside the Apartment at the time of the search. (See tr. at 8.) The police officers outside the Apartment recovered 47 bags of a white rock-like substance they believed to be crack cocaine. (See Complaint ¶ 2(c).) Inside the Apartment, police officers found a "Bonifacio Echeverria 7.65 caliber pistol" with a "fully loaded magazine" and "six live rounds" located inside a bag hanging on a closet door in the bedroom. (Id. ¶ 2(d).) Inside the bedroom closet, the police officers found "50 rounds of Winchester 9mm luger ammunition." (Id. ¶ 2(e).) In a crate in the living room, police officers found approximately "32 plastic shot gun shells." (Id.) Officers also found two silver razors and a plate, all of which contained residue believed to be from crack cocaine on top of the dresser in the bedroom. (See id. ¶ 2(g).) Officers noted several photographs of Defendant inside the Apartment, including one of Defendant "holding a shotgun," and one of Defendant sitting with "Individual 2" (Lopez) on a couch in the Apartment. (Id. ¶ 2(f).) The police also found "several bags of marijuana" inside the Apartment. (Id. ¶ 2(h).)
According to the Complaint, following Defendant's arrest and administration of his Miranda warnings, Defendant voluntarily made a statement that he "threw the drugs out the kid's bedroom" and that the "gun was in the closet in our bedroom." (See id. ¶ 3.) While Defendant was being processed, Defendant "voluntarily" told the police that "Individual 2" (Lopez) had "nothing to with the criminal activities inside the Apartment," and that she "knew nothing about those activities." (Id.)
On September 9, 2002 a federal Grand Jury returned a three count indictment charging Boone with (1) possession of a firearm following three prior convictions for violent felonies in violation of 18 U.S.C. § 922 (g)(1) and 924(e); (2) distribution and possession with intent to distribute approximately 47 bags of crack cocaine, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2; and (3) using and carrying a firearm in the course of and in committing the drug trafficking crime charged in count two, in violation of 18 U.S.C. § 924 (c)(1)(A)(i). Defendant filed the current motion on November 12, 2002.
Discussion
A. Suppression of Evidence Seized on June 5, 2002
1. Standing
Defendant's motion is based on an affirmation by Defendant stating that on June 5, 2002, when the Search Warrant was executed, he was inside his "girlfriend's apartment" at 1408 Webster Avenue, #14H (the "Apartment"). (Affirmation of Henry Boone dated November 12, 2002 ("Boone Affm.") at ¶ 2.) This statement is insufficient to show that Defendant had standing to challenge the search of the apartment. "Fourth Amendment rights are personal rights . . . [that] may not be vicariously asserted."United Sates v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) (quoting Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)). As stated in Minnesota v. Carter:
A defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a "source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understanding that are recognized and permitted by society."525 U.S. 83, 88 (1998) (quoting Rakas, 439 U.S. at 143, n. 12.) Defendant bears the burden of establishing that he had a reasonable expectation of privacy in the place searched and must submit an affidavit from someone with personal knowledge, demonstrating sufficient facts to show that he had a legally cognizable privacy interest in the searched premises at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 100, 104-5 (1980); see also, United States v. Fields, 113 F.3d 313, 320 (2d Cir. 1997) ("To contest the validity of a search, a defendant must demonstrate that he himself exhibited an actual subjective expectation of privacy in the area searched, and that this subjective expectation is one the society is willing to accept as reasonable.").
In Fields, the Second Circuit set forth several factors to consider in determining whether a defendant has a reasonable expectation of privacy in another's apartment, including whether he had a key, whether he used the apartment in the owner or lessee's absence; whether he paid rent for the privilege of using the apartment; whether he could bring guests into the apartment; and whether he could come and go as he pleased, even if the owner was not present. Fields, 113 F.3d at 320-21. Defendant's Affirmation does not allege any of these factors, and thus does not establish that he had a reasonable expectation of privacy in his girlfriend's apartment. Defendant has not shown he had standing to challenge the search of the Apartment.
2. Issuance of Search Warrant Was Based on Probable Cause and an Accurate Affidavit
Even assuming Defendant did have standing, the evidence was seized pursuant to a lawful search warrant issued "upon probable cause, supported by Oath or affirmation." U.S. Constitution, Amendment IV. The Search Warrant was issued by a Judge of the Criminal Court of the City of New York, Bronx County, on May 30, 2002, and authorized that the premises be searched by the police "without giving notice of . . . authority or purpose" and to seize any "controlled substance . . . and any evidence tending to demonstrate that the premises are utilized for the unlawful possession, packaging and sale of cocaine and other drug paraphernalia and evidence tending to establish ownership of the premises and connect persons found therein to the premises, to wit: personal papers and effects." (Search Warrant at 1.)
Again, assuming Defendant had standing to challenge the search of the Apartment, there is no basis to suppress the physical evidence seized from the Apartment based on the manner in which the police entered the Apartment. A particularized showing of exigent circumstances is required to justify a no-knock warrant. See e.g., Richards v. Wisconsin, 520 U.S. 385, 394-95 (1997). The Search Warrant specifically authorized that the police officers have grounds to "enter the premises . . . without giving notice of [their] authority or purpose," based on the particularized showing in Gossin's Affidavit that the drugs could be "destroyed or disposed of easily." (Gossin Aff. at 5.) The no-knock provision in the Search Warrant was clearly appropriate. Drugs are easily disposed of down a toilet or out a window. In this case, drugs were seen to be thrown out a bedroom window of the Apartment, supporting the validity of the no-knock provision in the Search Warrant.
The Search Warrant was supported by the affidavit of Detective Gossin, sworn to before Judge Fabrizio. offering statements that the Apartment had been used to sell narcotics for two years. that sales had occurred as recently as May 28, 2002 and May 29, 2002, and that the narcotics purchased therein on May 29 tested positive for cocaine. (See Gossin Aff. at 3-4.) Accordingly, Judge Fabrizio had evidence before him constituting probable cause to believe the Apartment was being used to distribute cocaine. Illinois v. Gates, 462 U.S. 213, 238 (1983) ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place"); United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983).
Defendant argues that the reliability of the informant was not established; however, the supervision of the informant was conducted in a manner that supported the informant's claims. Detective Gossin searched the informant before he entered the Apartment on two occasions and established that he was carrying no contraband prior to entrance and that upon the informant's exit of the Apartment, the informant delivered a blue plastic bag containing cocaine. (See Gossin Aff. at 3-4.) Judge Fabrizio had reasonable grounds to conclude that the informant had obtained the cocaine in the Apartment.
Defendant also challenges the accuracy of Gossin's Affidavit in support of the application for the Search Warrant (see Brown Affm. at ¶ 6), pointing out that a confidential informant in that affidavit stated she purchased cocaine on both occasions from a black female (Gossin Aff. at 3-4), while the Complaint states that an informant purchased drugs from Defendant. (Compl. at ¶ 2(b).) At the hearing, Police Officer Reid, the officer who executed the Search Warrant, cleared up this discrepancy, explaining he was in a different unit from Detective Gossin and had separate information about Defendant's activities from a different informant. (Tr. at 44-45, 49.) Accordingly, Defendant's challenges to the Search Warrant are without foundation and the evidence seized pursuant to the Search Warrant will not be suppressed.
3. 47 Bags of Crack Cocaine Were Abandoned
Regardless of standing and probable cause to issue the Search Warrant, Defendant's motion to suppress the seized 47 bags of crack cocaine must be denied on additional grounds. There is no dispute that the 47 bags of crack cocaine were thrown out the window. Under that circumstance, Defendant forfeits any reasonable expectation of privacy that he might have had in the property. See United States v. Koessel, 706 F.2d 271, 273-74 (8th Cir. 1983) (the defendant had abandoned and could not seek suppression of cocaine he threw from car prior to his arrest.). See also, California Hodari D., 499 U.S. 621, 629 (1991); United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990).
4. Good-Faith Exception to the Exclusionary Rule
Finally, assuming Defendant had standing to challenge the search of the Apartment, even if there were a separate basis to challenge the validity of the Search Warrant, the officers conducting the search acted in good faith reliance on it. The Supreme Court has held that suppression should not apply as a remedy in the case where evidence is "obtained in objectively reasonable reliance on a subsequently invalidated search warrant." United States v. Leon, 468 U.S. 897, 922 (1984). A reviewing court must determine whether an officer's reliance on a warrant is objectively reasonable, in which case suppression is not warranted. See e.g., United States v. Roberts, 852 F.2d 671, 675 (2d Cir. 1988). The instances in which the good faith exception does not apply are when (1) the issuing judge is misled by information an affiant knew was false; (2) the issuing judge wholly abandoned his judicial rule; (3) the supporting affidavit lacked any indicia of probable cause; or (4) the warrant was insufficiently specific. Leon, 468 U.S. at 923. None of these situations is alleged in this case. The good faith exception applies here and the evidence should not be suppressed.
B. Suppression of Defendant's Statements
1. Defendant's Statements To the Police Were Voluntary.
At the suppression hearing, Police Officer Reid, a police officer for nine and a half years assigned to the housing bureau and street narcotics enforcement housing bureau (see tr. at 4), testified that he arrested Ms. Lopez and Defendant on June 5, 2002 in the Apartment (id. at 7-8); that he did not immediately give Miranda warnings to Lopez and Defendant as he was not planning to ask them any questions (id. at 9-10); that both Lopez and Defendant were removed to the precinct id. at 10); that Reid searched the Apartment and then came back to the precinct and filled out arrest processing forms (id. at 10-11); that he asked Defendant his name, date of birth, address, height, weight, etc., and not about guns or narcotics (id. at 11-12); and that Defendant volunteered that "Ms. Lopez had nothing to do with it and she didn't know what was going on." (Id. at 12.) Officer Reid testified that he did not respond, but did notify the Trigger Lock Unit of Defendant's arrest; (id. at 13.) that while Defendant was speaking with two detectives from the 42nd precinct, Officer Hickey of the Trigger Lock Unit arrived and proceeded to give Defendant his Miranda warnings; (id. at 13-15); that Defendant acknowledged that he understood the warnings (id. at 15); and that Defendant signed a copy of a card containing the written warnings in Reid's presence. (Id. at 16-18; see Government Exhibit. 1.) Thereafter, Detective Hickey and Defendant engaged in a conversation regarding the events that transpired at the Apartment and Hickey wrote down Defendant's answers and then read back to Defendant what he had written. (See tr. at 22.) Defendant then signed the writing (see Gov. Exh. 2) and Officer Reid bore witness to the signing (See tr. at 22.)
Detective Hickey also testified at the hearing and corroborated Reid's testimony. Their testimony was not refuted. In short, there is no indication that the Defendant did not receive or did not understand the Miranda warnings or that he did not sign the Miranda waiver voluntarily or give his statement voluntarily.
2. Officers Had Probable Cause to Arrest Defendant
Defendant alternatively seeks to suppress his statements and other fruits of Defendant's arrest based on a lack of probable cause to arrest Defendant.
Probable cause to arrest exists if police officers "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). Nonetheless, mere presence is an apartment where drugs and a firearm are found is insufficient to establish probable cause to arrest a person when there is no reason to link that person to the illegal items.See e.g., Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (although a search warrant issued upon probable cause gave police officers authority to search the premises of a public bar, a search of one of the patrons was not constitutionally permissible where there was no reasonable belief that the patron was involved in any criminal activity).
In this case, Officer Reid had had prior information from informants that Defendant had a gun in the Apartment and was dealing drugs from the Apartment (see tr. at 43-44), and that Ms. Lopez sold drugs from the Apartment for which Defendant was the dealer. (See id. at 45). Reid also testified that he learned that the 47 bags of crack had been seized while Defendant was in the Apartment. (See id. at 40-41). Based on these facts, Officer Reid had probable cause to place Defendant under arrest for drugs for violation of drug laws, and, upon finding the gun, had probable cause for charging Defendant with possession of a firearm. Defendant's post-arrest statements should not be suppressed.
C. Disclosure of Identity of the Confidential Informant
Defendant moves for pretrial disclosure of the identity of the confidential informant referred to in Gossin's Affidavit.
As a preliminary consideration, disclosure of the informant's identity in this case could put the informant in danger. See e.g., United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985). Narcotics cases are well known to be accompanied by violence and threats of violence. This case involves 47 bags of crack cocaine, a loaded gun, and ammunition, and Defendant has been convicted of three prior violent felonies: robbery in the second degree, attempted robbery in the second degree and attempted assault in the first degree. The safety of the informant is a valid consideration on the question of nondisclosure her identity.
Even if safety of the informant were not a consideration in this case, Defendant has failed to meet his burden to entitle him to disclosure of the identity of the informant. The Supreme Court has held that "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [informant's] privilege must give way." Roviaro v. United States 353 U.S. 53, 60-61 (1957). The Second Circuit has restated the Roviaro standard to require disclosure of the identity of a confidential informant if his testimony "is shown to be material to the defense." United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988).
Defendant argues that because no mention of Defendant or any male is made in Gossin's Affidavit attached to the Search Warrant regarding the prior drug sales in the Apartment, the confidential informant has necessary exculpatory information that it was Lopez and not Defendant who possessed and intended to distribute the seized drugs from the Apartment. (See Brown Affm. at 4.)) However, all that Defendant has shown is that the informant could testify that on May 28 and May 29, 2002, she purchased cocaine from a female (presumably Ms. Lopez) in the Apartment. The Defendant has not shown that the informant could testify that the 47 bags of crack cocaine thrown from the Apartment window on May 30, 2002 belonged to Ms. Lopez or did not belong to Defendant. Accordingly, the evidence sought from the informant has not been shown to be relevant to the crimes charged in the Indictment, or helpful to Defendant's defense under Roviaro, and would invite speculation that the woman who made the two prior sales of cocaine was the sole possessor of the 47 bags of crack, a different narcotic. "Mere speculation, however that the informer may possibly be of some assistance does not overcome the strong public interest in protecting informants." United States v. Martinez, 634 F. Supp. 1144, 1150 (S.D.N.Y. 1986) (court noted that there was no indication that the confidential informant "either participated in or was a material eyewitness to the criminal activities charged in the indictment or [was] otherwise needed for a fair determination of the issues at trial" and denied the pretrial disclosure of the informant's identity). See also, United States v. Guastella, 90 F. Supp.2d 335, 334-335 (S.D.N.Y. 2000) (court found that the defendants had "not identified any defense as to which any informant's testimony might relate, nor [had] they made a showing as to how an informant's testimony would be material to a defense"); United States v. Prueitt, 540 F.2d 995, 1003-04 (9th Cir. 1976) (court held that because the defendants merely speculate that the informant's testimony may have been helpful to their defense, the district court did not abuse its discretion in refusing to order the informant's disclosure). Defendant has made no claim that the informant in this case has personal knowledge of the criminal activity charged in the Indictment, as in Martinez. Defendant is only speculating that the informant has helpful information to his defense. The fact that the informant had knowledge of Ms. Lopez' involvement in narcotics sales from the Apartment is not sufficient under Roviaro, to show that it would be relevant or helpful to Defendant with respect to the charges against him.
Defendant's motion to compel the identity of the government's confidential informant prior to trial is denied.
Conclusion
For the foregoing reasons, Defendant's motion is denied in its entirety.
IT IS SO ORDERED.