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UNITED STATES v. SPENCER

September 10, 1981

UNITED STATES of America,
v.
Lorenzo SPENCER, Defendant



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

Having been indicted and then reindicted for alleged violations of 18 U.S.C. § 2113(a) and (d), bank robbery, Mr. Lorenzo Spencer has moved to suppress physical evidence discovered during a search of his residence and statements he made subsequent to his arrest. This Court held a hearing on July 29, 1981, to consider these issues and finds the following to have occurred:

 On May 19, 1981, at approximately 5:15 PM, New York City Police Officer Thomas Van Pelt was on radio car patrol with another New York Police Officer Sergeant Eagen when a young female flagged down the car at 116th Avenue and Barron Street in the Borough of Queens (Tr. 5-6). This young lady, who was later identified as Ms. Dena Hogan, told the officers that she was living with a friend who kept guns in the house and that she wanted them to go and remove the guns because she was afraid that her child would find the weapons and hurt himself (Tr. 7).

 Obviously needing more information, the officers asked whether the friend was at home now and Ms. Hogan responded in the affirmative. The officers then told her that "if we go in and the guns are there, we are going to have to arrest him. We are also going to have to have her as the complainant." Ms. Hogan balked at that suggestion, stating that she did not wish to get involved. (Tr. 7).

 Sergeant Eagen next asked Ms. Hogan if her friend was in trouble and she replied that "He had something to do with banks." The Sergeant then inquired whether there was a warrant outstanding for his arrest but Ms. Hogan did not know. Further questioning revealed that her friend's name was Lorenzo Spencer, that her name was Dena Hogan, that Mr. Spencer's date of birth was January 5 and that he was 21 years old (Tr. 8). Ms. Hogan also informed the officer that the address at which she resided with Mr. Spencer was 155-64 116th Drive in Queens (Tr. 8).

 Immediately after this conversation took place, Officer Van Pelt returned to the station house and ran the name Lorenzo Spencer and his date of birth through the police computer to see if there were any outstanding warrants for his arrest. The computer indicated that there was an active warrant outstanding but that Central Warrants should be called to verify that fact. Central Warrants did indeed confirm that there was an active bench warrant out for Mr. Spencer's arrest (Tr. 9).

 Soon thereafter, Officer Van Pelt and Sergeant Eagen drove to 155-64 116th Drive. There they waited for two officers from the warrant part to assist them in the arrest of Mr. Spencer. When these officers arrived they approached the front door of the premises at that address. After wending their way through a number of dogs, the officers reached the front of the building where there were two doors. They knocked on one of the doors, asked if Lorenzo Spencer lived there, and, discovering that he did not, moved over to the next door (Tr. 10-11).

 That second door was apparently wide open and the officers walked in and went upstairs where the living quarters of that apartment were located. When these four officers reached the top of the stairs, an elderly man approached them and in response to the officer's question responded that Mr. Spencer did live there but that he did not know whether he was in right now. The man then indicated that Mr. Spencer lived in a room at the back of the apartment whereupon the officers carefully made their way back to that room (Tr. 11-12).

 When the officers reached that last room, they carefully checked under the bed, behind a large dresser and in the closet to see if Mr. Spencer was hiding anywhere within. The closet itself was rather small but there was an opening at the top which led to the attic which was subsequently checked out by other officers called to the scene (Tr. 14). The officers did not discover Mr. Spencer but in the closet, in plain view was a black plastic bag out of which stuck a couple of gun barrels (Tr. 12). With his curiosity aroused by this sight, an officer opened the top of the bag a bit and saw the stock of a rifle and other assorted items. The officer then took the gun from the bag and moved the bag out of the closet to get a better look at the contents (Tr. 12-13).

 In the bag was a loaded thirty caliber carbine, a loaded twenty-two caliber revolver, an unloaded thirty-two caliber semi-automatic, a device to remove locks from automobiles, two ski masks, rubber gloves, various savings bonds, and a signal stat which is a rotating red light for use on emergency vehicles (Tr. 13, 26-27). All of this was taken by the police officers when they left the premises which was shortly after the attic had been searched to see if Mr. Spencer was hiding there.

 The next part of the hearing concerned the arrest of Mr. Spencer on June 25, 1981, by the FBI. Pursuant to an arrest warrant issued by a magistrate of this Court, Agent James Ellis placed Mr. Spencer under arrest outside of 172-05 111th Street in Queens. Agent Ellis advised Mr. Spencer of his rights and then transported him back to the FBI office for processing (Tr. 29-31).

 At the FBI office Mr. Spencer was again advised of his rights, which he said he understood, and shown the complaint outstanding against him. That complaint charged him with armed bank robbery (Tr. 31-32). Upon reading it, he said "I never done it. I wasn't never in no bank so I couldn't have done no bank robbery." He further added that "I never been in the Astoria Federal Savings Loan, I don't even know where one is." (Tr. 33).

 DISCUSSION

 The issues presented by this motion are relatively clear: (1) May the police, in attempting to execute an arrest warrant enter a residence of the suspect when they have a reasonable belief that he is present therein and, during the course of that entry, search for the suspect and seize incriminating objects which are discovered in plain view during the course of that search ...


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