Opinion
00 Cr. 105 (RPP)
September 7, 2000
Mary Jo White, United States Attorney for the Southern District of New York, New York, NY., By: Marcia S. Cohen, AUSA, David Rody, AUSA.
Alan M. Nelson, Esq., Lake Success, NY., Counsel for Tony McAfee.
OPINION AND ORDER
Defendant Tony McAfee has been indicted for conspiracy to distribute and possess with intent to distribute controlled substances from in or about January 1999 to February 2000. He moves to suppress physical evidence seized from (a) the basement apartment of 889 Cauldwell Avenue, Bronx, New York upon a warrantless search on January 10, 2000 and (b) the basement apartments of 889 and 891 Cauldwell Avenue pursuant to search warrants executed on or about January 25, 2000. For the reasons set forth herein, Defendant McAfee's motion to suppress evidence seized at 889 Cauldwell Avenue on January 10, 2000, is denied and his motion to suppress evidence obtained from 889 and 891 Cauldwell Avenue on or about January 25, 2000, is denied.
1. Search of 889 Cauldwell Avenue
On January 10, 2000, Detective Robert Rodriguez, along with other detectives of the New York City Police Department ("NYPD"), arrested Tony McAfee at the basement apartment of 889 Cauldweil Avenue and seized a loaded semi-automatic pistol, a bag containing 111 yellow slabs of crack cocaine, and $671 in United States currency. Defendant moves to suppress these items on the grounds that they were seized without a search warrant, without his consent, without probable cause to believe that he had committed an offense, and were beyond the scope of a valid search incident to arrest. (Defendant's Memorandum of Law in Support of His Motion to Suppress Physical Evidence ("Def Mem.") at 2, 5.)
At a suppression hearing on August 10, 2000, Detective Robert Rodriguez was the sole witness called to testify. He testified that: (1) he is assigned to the Bronx warrant squad of the NYPD (August 10, 2000, Transcript ("Tr.") at 3); (2) on January 10, 2000, he, along with other members of the warrant squad, went to 889 Cauldwell Avenue, an address previously known to him as in a narcotics area, to execute a warrant for violation of probation on Tanya Echevarria, (id at 8 23-25), who had given 889 Cauldwell Avenue as her address during the processing of prior arrests (id. at 20, 22; Government Exhibits 1, 2, 3); (3) he knocked on the front door of the main entrance and, upon hearing dogs barking, desisted and proceeded to knock on the basement door and windows, from which he had heard loud music (id. at 26); (4) a short time after that, the music stopped and then an unidentified man exited the basement floor doorway (id.); (5) the individual left the area after a brief conversation with Detective Rodriguez, during which the individual indicated that he did not live at 889 Cauldwell Avenue (id. at 27); (6) Detective Rodriguez then went through the basement door entrance, which he had held open after the unidentified man exited (id. at 27, 64), and opened and walked through a vestibule and second door to a common hallway, next to which was a third door (id. at 27-30); (7) upon knocking on the third door, the door was quickly opened by Mr. McAfee, who was standing slightly to the right of Detective Rodriguez, (id. at 31-33, 74); (8) almost immediately, Detective Rodriguez observed a silver semiautomatic pistol lying on a bed, which was six to eight feet behind Mr. McAfee (id. at 33, 78); (9) Detective Rodriguez pulled Mr. McAfee out into the hallway and handcuffed him (id. at 33); (10) Detective Rodriguez "handed off" Mr. McAfee to other officers and then entered the apartment with another detective and screamed "police" (id. at 34); (11) after safeguarding the gun which was loaded, Detective Rodriguez and the other detective conducted a protective sweep to determine whether there were other people in the house (id. at 35-36); (12) after no one was found and nothing was recovered during the protective sweep (id. at 36), Detective Rodriguez went outside to update the other officers and observed that Defendant McAfee, who was seated in the rear seat of Detective Rodriguez's car, was not wearing any shoes or a jacket (id. at 37-38) and decided to take McAfee back inside the apartment to get McAfee shoes and a jacket (id. at 38); (14) Detective Rodriguez led Defendant McAfee, who was still handcuffed, back into the apartment, in which McAfee had indicated he had his belongings, to locate shoes and a jacket for Defendant (id. at 38); (15) prior to putting Defendant's boots on him, Detective Rodriguez performed a thorough pat down of his leg area (id. at 39); (16) after finding $671 in United States currency secreted in his socks, Detective Rodriguez sat defendant McAfee back down on the bed and asked him "if there was anything else on his person or in [the] room that [he] should know about that was going to be harmful to [himself] or [his] partners" (id. at 39-40), to which Defendant McAfee responded, "No, there is nothing else in here. The only other thing is in the black bag. There are some drugs in the black bag," indicating with his eyes a black duffle bag on the bed on which he was seated (id. at 40); and (17) Detective Rodriguez took possession of the bag, which was located about a foot from where he recovered the gun, and verified that the bag contained substances which appeared to be drugs (id. at 41-42). Detective Rodriguez testified that he did not specifically recall whether the bag was open or closed, but he stated that he believed that it was open (id. at 41-42).
On direct, Detective Rodriguez stated that the bed and the gun were to Mr. McAfee's left, up against the windows facing the street. (Tr. at 33.) On cross-examination, Detective Rodriguez stated that the bed was to his left. (Id. at 78.)
The gun was properly seized. Detective Rodriguez had an arrest warrant for Ms. Echevarria and he had reason to believe that she lived at 889 Cauldwell Avenue or that residents at that address might know of her present whereabouts. He was attempting to locate Ms. Echevarria when he knocked on the door of the basement apartment. (August 10, 2000, Transcript at 30.) Almost immediately after Defendant McAfee opened the door, Detective Rodriguez saw the firearm which was subsequently seized. When the initial intrusion which brings law enforcement officers within plain view of an instrumentality of crime is proper, the resulting seizure of the object is lawful as well. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion); Arizona v. Hicks, 480 U.S. 321, 326 (1987).
The Court rejects Defendant's suggestion that Detective Rodriguez's testimony was not credible. (August 10, 2000, Transcript at 96.) Although Detective Rodriguez failed to ask the unidentified man who was leaving the premises if he knew Ms. Echevarria, the man stated he did not live there so there was little reason to ask that question of that man. Accordingly, there is no basis to conclude that Detective Rodriguez was not acting in "good faith" to find someone who could assist him in locating Ms. Echevarria. (Id. at 93-94.) Defense has not shown that Detective Rodriguez's actual intention was to search the basement of the apartment or to arrest Mr. McAfee. Indeed, Detective Rodriguez testified that he did not know and had never seen Mr. McAfee prior to the date of Defendant McAfee's arrest. (Id. at 9.)
Furthermore, given that Defendant McAfee was lawfully under arrest and the $671 in United States currency was on his person, the seizure of the money was lawful as a search incident to arrest. See generally Chimel v. California, 395 U.S. 752, 766 (1969) (holding that a search incident to arrest of the person arrested and the area within his reach is proper). The fact that the search did not occur contemporaneously with the handcuffing of Mr. McAfee does not warrant suppression of the evidence, because the delay between the arrest and the search was due to the need to safeguard the gun and conduct a protective sweep of the premises. See United States v. Han, 74 F.3d 537, 543 (4th Cir. 1996) (holding that the Fourth Amendment permits a reasonable delay between the elimination of danger and a search incident to arrest). Additionally, under the doctrine of inevitable discovery the currency should not be suppressed. Cf. United States v. Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (finding that arrest for an assault would inevitably have led to the discovery and seizure of passports that were in defendant's pocket upon a search of his person incident to the arrest). The money would have been found inevitably when McAfee was processed at the precinct house after his arrest.
The seizure of the drugs in the black bag involves a different issue of law. The government does not dispute that Defendant was handcuffed and in custody and had been patted down both around his waist and pockets area and around his lower leg area, and had not received Miranda warnings when Detective Rodriguez asked Defendant whether there was anything else on Defendant's person or in the room which Detective Rodriguez should know about that could be harmful to himself or his partners. (Letter to the Court from David M. Rody, dated August 24, 2000, ("Rody Letter") at 3.) Notwithstanding the fact that the government concedes that Defendant was in custody and had not received the Miranda warnings, the government contends that Detective Rodriguez's question was proper under New York v. Quarles, 467 U.S. 649 (1984), and its progeny, because the question was not intended to elicit incriminatory answers but rather was posed in order to protect the safety of Detective Rodriguez, the other police officers, and the public. (Rody Letter at 2.)
In its memorandum of law in opposition to Defendant's motion, the government had stated "that all of the items seized at the time of McAfee's arrest were seized either pursuant to a lawful security sweep of his apartment; because they were in `plain view'; or as an incident to McAfee's lawful arrest." (Government's Memorandum of Law in Opposition to Defendants' Pretrial Motions ("Gov. Mem.") at 45.) At oral argument after the hearing, the government suggested that the public safety exception to the Miranda rules as set forth in New York v. Quarles and its progeny was "the the best theory for explaining how the drugs were validly seized." (Transcript at 101-02.) The Court ordered the issue briefed.
In New York v. Quarles, the Supreme Court reversed the New York State Court of Appeals' suppression of a gun due to a defendant's answer during arrest prior to being given Miranda warnings. Id. In that case, the arresting officer was told by a complainant that a black man carrying a gun had just raped her, that the man was dressed in a distinctive jacket, and had just entered an AP supermarket. Id. at 651-52. The arresting officer spotted a man of that description in the AP and chased him; the man when arrested had an empty shoulder holster; the arresting officer asked where the gun was, and the man told him it was "over there" nodding toward some empty cartons where it was retrieved. Id. at 652.
The Supreme Court held:
We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. We decline to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.Quarles, 467 U.S. at 657-58.
The Supreme Court then held that New York Court of Appeals erred in excluding Quarles's statements and the gun because of the officer's failure to read Quarles his Miranda rights before attempting to locate the weapon. Id. at 689.
Various circuit courts have expanded on Quarles. See United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (upholding admissibility of defendant's statement during arrest or Terry stop that he had marijuana in his pocket in response to officer's question, prior to a search of his person, as to whether he had any needles in his pockets that could injure the officer during a pat frisk); United States v. Carillo 16 F.3d 1046, 1049-50 (9th Cir. 1994) (upholding admissibility of defendant's statement, "I don't use drugs, I sell them," in response to officer's question at detention facility, prior to search of defendant's person, as to whether defendant had any drugs or needles on his person); United States v. Edwards, 885 F.2d 377, 384 (7th Cir. 1989) (upholding admissibility of defendant's statement, "What do I need a gun for? [I] just came for dinner," in response to officer's question as to whether defendant had a gun); United States v. Williams, 181 F.3d 945, 948, 953-54 (8th Cir. 1999) (upholding admissibility of handcuffed defendant's response. that there was a handgun in the closet, to officer's question if there was "anything we need to be aware of"). See also United States v. Gonzalez, 864 F. Supp. 375 (S.D.N.Y. 1994); United States v. Alfonso, No. 94-Cr.-813, 1995 WL 6225 at 3-4 (S.D.N.Y. Jan. 9, 1995) (admitting defendant's response that she was alone in apartment to officers' question of whether anyone else was in the apartment) (finding defendant's statement also admissible under United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987) since the question lacked investigatory purpose and therefore was not an interrogation because "[t]he questions asked must have been both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the `will' of his examiner").
In Quarles the Supreme Court found that judges should not make post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Quarles, 467 U.S. at 656. Rather, the Court must only determine whether the questions asked were "reasonably prompted by a concern for public safety." Id. at 657.
Detective Rodriguez testified he asked the question because, "I wanted to be careful and make sure that no one I was with or Mr. McAfee got hurt." (Tr. at 40.)
Detective Rodriguez's question and defendant McAfee's response fall within the public safety exception to Miranda under Quarles and its progeny. Here, Detective Rodriguez was engaged in an attempt to find a fugitive arrested for narcotics sales and possession of two loaded guns (Tr. at 18-21) in a building in an area which he had known from ten years of experience to be a high crime area and which he felt to be personally dangerous (id. at 58, 60). When Detective Rodriguez brought defendant McAfee back to the basement apartment to get him his shoes and jacket, he had only conducted a protective sweep of the apartment to make sure there were no other people present. He had not searched the apartment for weapons. Detective Rodriguez did not know how the apartment was used. He had not expected to arrest McAfee and knew nothing of his modus operandi. It was possible that there were other hazardous weapons or booby traps on the premises that could have harmed the officers or McAfee, particularly if the officers happened upon them unexpectedly. See Williams, 181 F.3d at 954.
The discovery of a large amount of currency was an unexpected development at this stage of the arrest since it had not been discovered on McAfee's person by any of the arresting officers. Accordingly, it was reasonable to ask if the defendant had anything else on him that might be harmful to the officers while they were putting McAfee's shoes and jacket on him. Detective Rodriguez broadened that question to "or in the room." This question is more directed to safety than the question, "is there anything we need to be aware of?" held permissible under Quarles inUnited States v. Williams 181 F.3d at 948. The question asked related to the officers' safety in an apartment of which Detective Rodriguez had no previous knowledge or experience. Thus Detective Rodriguez's question was reasonable under the Quarles public safety exception to Miranda. Defendant McAfee's initial statement, "No, there is nothing else in here," (Tr. at 40) was responsive to the question asked. Defendant McAfee's voluntary addition, "The only other thing is in the black bag. There are some drugs in the black bag," (id.) was not responsive to the question.
In Carillo, the court stated:
Our conclusion is buttressed by the non-investigatory nature of the officer's question. The question [regarding whether the defendant had any needles in his pockets] called for a "yes" or "no," not a testimonial response. Ordinarily, a question framed in this manner would not elicit any incriminating evidence not produced by the search itself. . . . [T]he narrowly tailored question was a reasonable attempt by a police officer to insure his personal safety in the midst of a search. Consequently, the spontaneous and unrequested response of the suspect was properly admitted under the Quarles public safety exception to Miranda.16 F.3d at 1049-50.
Accordingly, the Court denies McAfee's motion to suppress the drugs found in the basement apartment of 889 Cauldwell Avenue, Bronx, New York, on January 10, 2000, on the grounds that the defendant's spontaneous but unresponsive answer was to a question reasonably prompted by a concern for public safety. As such, the Miranda rule does not apply and the drugs seized will not be suppressed.
2. Searches of 889 and 891 Cauldwell Avenue
Defendant submits a copy of the search warrant for the basement apartment of 889 Cauldwell Avenue, (Notice of Motion for Suppression of Physical Evidence Electronic Surveillance, dated May 17, 2000, Ex. B), but he does not submit the search warrant for the basement apartment of 891 Cauldwell Avenue. Apparently, he mistakenly attached the search warrant which authorized the search of an apartment on the third floor of 891 Cauldwell Avenue. (Id., Ex. C.)
On or about January 25, 2000, law enforcement officials seized various weapons, ammunition, and drug paraphernalia from the basement apartments of 889 and 891 Cauldwell Avenue pursuant to search warrants. Defendant argues that "[T]he affidavit in support of the warrant fail[ed] to present sufficient probable cause to justify a search of the premises." (Def Mem. at 5.)
[T]he term "probable cause" . . . means less than evidence which would justify condemnation. . . . It imports a seizure made under circumstances which warrant suspicion. . . . While an effort to fix some general, numerically precise degree of certainty corresponding to "probable cause" may not be helpful, it is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.Illinois v. Gates, 462 U.S. 213, 235 (1983) (citations omitted).
McAfee states that he is the lawful tenant of the premises of 889-891 Cauldwell Avenue, Basement Apartment, but does not offer any supporting documents. (Tony McAfee's Affidavit in Support of Motion for Suppression of Physical Evidence Electronic Surveillance, dated May 19, 2000, ("McAfee Aff") ¶¶ 2, 3). The government points out that McAfee bears the burden of establishing that his own Fourth Amendment rights were violated by the search and seizure of both apartments (Gov. Mem. at 49, n. 15). See Rakas v. Illinois, 439 U.S. 128, 131 n. 1 (1978);United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991). For the purposes of this motion, the Court will assume that McAfee's repeated use of the premises for ongoing illegal activity indicate that McAfee had a reasonable expectation of privacy in both the premises searched. The government's allegations that he was part of a conspiracy which lasted over a year, was based at the premises searched, and that he personally sold crack at both 889 and 891 Cauldwell Avenue are not inconsistent with tenancy. Furthermore, Mr. McAfee represented to Detective Rodriguez that his belongings were at 889 Cauldwell Avenue when he was arrested on January 10, 2000, and the government states that Mr. McAfee listed the basement of 891 Cauldwell Avenue as his address when he was arrested on or about January 25, 2000. (Gov. Mem. at 49-50, n. 15.)
McAfee also argues that the search warrant was unlawful, because it permitted law enforcement officers to search closed and locked containers, for which probable cause is also required. (Alan M. Nelson's Affidavit in Support of Motion for the Suppression of Physical Evidence Electronic Surveillance, dated May 17, 2000, ("Nelson Aff") ¶ 32.) The probable cause set forth in the supporting affidavit of Detective Roberts that narcotics traffickers routimely secrete and store narcotics paraphernalia and records inside such containers is sufficient. (Sealed Complaint and Affidavit for Search Warrants, dated Jan. 22, 2000, ("Complaint and Affidavit") ¶ 185(8).)
The sealed complaint and affidavit in support of the application for the search warrants demonstrated that there was probable cause to believe that the basement apartments of 889 and 891 Cauldwell Avenue were "being used for the storage and distribution of narcotics, narcotics proceeds, and the facilitation of narcotics offenses." (Sealed Complaint and Affidavit for Search Warrants, dated January 22, 2000, ("Complaint and Affidavit") ¶ 176.) Based upon an investigation of several months which included undercover purchases of cocaine, the use of confidential informants, and physical, video-tape, and wiretap surveillance (id. ¶ 7), Detective Roberts stated in his affidavit that (1) from February 1999 to January 2000, Tracy Harris, one of McAfee's co-defendants, ran a narcotics organization which used 889 and 891 Cauldwell Avenue as above (id. ¶ 13); (2) members of the organization referred to 889 and 891 Cauldwell Avenue together as "the Well" (id. ¶¶ 13, 177); (3) the organization "purchase[d] between three and four kilograms of cocaine per month and distribute[d] numerous kilograms of crack cocaine per month through numerous distributors based at 889-891 Cauldwell Avenue" and other locations (id. ¶ 13); (3) a confidential informant (identified as "CI-1") "advised law enforcement officers that, on multiple occasions at the end of 1997 and the end of 1998, [he] met with Tracy Harris at 889 Cauldwell Avenue regarding drug purchases" (id. ¶ 23); (4) numerous people believed to be drug customers of the organization regularly "[drove] to 889-891 Cauldwell Avenue, enter[ed] either the basements or ground floors of these buildings, and depart[ed] shortly thereafter" at all times of the day and night (id. ¶¶ 24, 180); (5) Tony McAfee worked at 889-891 Cauldwell Avenue selling crack (id. ¶ 168); (6) on January 6, 2000, a confidential informant (identified as "CI-3") purchased crack cocaine from Tony McAfee at the basement apartments of both 889 and 891 Cauldwell Avenue (id. ¶¶ 170, 171); (7) on January 10, 2000, Tony McAfee was arrested by the NYPD inside the basement apartment of 889 Cauldwell Avenue and was in possession of crack cocaine, a loaded firearm and $671 in United States currency (id. ¶ 174); (8) "CI-3 [an informant of known reliability] advised law enforcement officers that he ha[d] been aware of 889 and 891 Cauldwell Avenue as locations from which drugs [were] sold for at least two years," and that, "the only individuals who live in 889 and 891 Cauldwell Avenue work as drug dealers" (Id. ¶ 179); (9) "lookouts" and "pitchers" are stationed outside of 889 and 891 Cauldwell Avenue (Id. ¶ 180); (10) on January 12, 2000, CI-3 made purchases of crack cocaine from the basements of both 889 and 891 Cauldwell Avenue (id. ¶¶ 182, 183); and (11) that the purchase of crack cocaine at the basement of 889 Cauldwell Avenue was from Tony McAfee (id. ¶ 183).
"The lookouts stand outside the buildings and speak to individuals before they enter the buildings. The pitchers meet individuals at the door of the buildings and accompany the individuals inside the buildings." (Complaint and Affidavit ¶ 180.)
This showing was sufficient to establish that there was probable cause to believe that crack cocaine had been regularly sold from the basement apartments of both 889 and 891 Cauldwell Avenue for an extended period of time and that crack cocaine continued to be sold from the basement apartments of 889 and 891 Cauldwell Avenue even after McAfee's arrest on January 10, 2000. Accordingly, the search warrants for of the basement apartments at 889 and 891 Cauldwell Avenue issued by Magistrate Judge Grubin were fully justified. Defendant's motion to suppress the evidence seized from the basement apartments of 889 and 891 Cauldwell Avenue is denied.
Defendant also contends that the search warrant was overbroad, because it did not describe with particularity the places to be searched and items seized. (Nelson Aff. ¶ 34.) Given that the crime for which police officers had probable cause to believe was occurring was a longstanding conspiracy to distribute narcotics, the affidavit in support of the search warrant provided sufficient details to meet the principle set forth in Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971), that searches should be as limited in scope as possible. Furthermore, the affidavit in support of the search warrants set forth a particular description of the items to be seized (Complaint and Affidavit ¶¶ 185, 186). See Coolidge, 403 U.S. at 467.
CONCLUSION
For the foregoing reasons, defendant Tony McAfee's motion to suppress the gun, money, and narcotics seized on January 10, 2000 is denied, and his motion to suppress the items seized from 889 and 891 Cauldwell Avenue on or about January 25, 2000 is denied.IT IS SO ORDERED.
Defendant argues that Mr. McAfee was "standing directly in front of" the door. (August 10, 2000, Transcript ("Tr.") at 96 (emphasis added).) This argument misstates the testimony. Detective Rodriguez testified on cross-examination that Mr. McAfee was standing "in front" of the door. (Id. at 76). That testimony suggests that the defendant was standing across the threshold of the doorway and is not inconsistent with Detective Rodriguez's testimony on direct that Mr. McAfee was standing slightly to the Detective's right. (Id. at 32-33.)