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UNITED STATES v. MUTULU SHAKUR

March 31, 1983

UNITED STATES OF AMERICA
v.
MUTULU SHAKUR, a/k/a "Doc," a/k/a "Jeral Wayne Williams," SEKOU ODINGA, a/k/a "Nathaniel Burns," a/k/a "Mgabasi," a/k/a "Mugubasi," a/k/a "Eddie Holmes," a/k/a "Lou," CECIL FERGUSON, a/k/a "Mo," a/k/a "Chui," EDWARD LAWRENCE JOSEPH, a/k/a "Edward Lawrence," a/k/a "Jamal," a/k/a "Tony," a/k/a "J. R.," WILLIAM JOHNSON, a/k/a "Bilal Sunni-Ali," a/k/a "Spirit," SILVIA BARALDINI, a/k/a "Louise," SUSAN ROSENBERG, a/k/a "Elizabeth," CHERI DALTON, a/k/a "Nahanda," ILIANA ROBINSON, a/k/a "Naomi," NILSE COBEO, a/k/a "Nilse Lawrence," a/k/a "Ginger," a/k/a "Gigi," a/k/a "Giovanni Correa," and ALAN BERKMAN, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, D.J.:

 Defendant Cecil Ferguson moves to suppress physical evidence seized from the premises located at 35 West 110th Street, Apartment 3K, New York, New York, on the grounds that the seizure violated the Fourth Amendment. In addition, he moves to suppress physical evidence seized post arrest from his person on the grounds that it was the fruit of an unlawful arrest.

 BACKGROUND

 The following is the factual background as generally portrayed on behalf of the defendant. By assuming these facts for purposes of this motion, it is not to be considered that I am making them as findings of fact. I am also reciting certain assertions found in responding affidavits insofar as they are necessary for an understanding of the situation and are not denied by the defendant. At approximately 5:35 a.m. an unidentified Federal Bureau of Investigation ("FBI") agent awakened Ferguson and his wife, Nakawe Luisette Cuebas-Ferguson-El ("Cuebas"), by telephone. The agent stated that the FBI had surrounded the apartment to arrest Ferguson. Within minutes the agents were pounding on the door of Apartment 3K. Cuebas opened the door and was pulled into the hallway by the agents. Fifteen to twenty agents then pushed into the apartment breaking the door off a hinge. Ferguson offered no resistance. While Cuebas was interrogated by an FBI agent and a policewoman on the floor above, Ferguson was taken in handcuffs from the apartment. At the same time, members of the New York City Bomb Squad and other members of an emergency services team entered the apartment to check for other persons or explosives. Assisting them was a dog specially trained in the detection of explosives.

 The officers found no other persons in the apartment. In addition, the dog did not indicate the presence of explosives. The dog's reaction, however, does not conclusively establish the absence of explosives, (Breslin Affidavit at 2), *fn1" and therefore, the Bomb Squad physically checked for explosive devices. Their physical check began with an examination of the bedroom facing east. This bedroom had a closet that was either closed or slightly ajar. In order to test the closet for explosives, Breslin tied a long string to the door knob, went into the hallway behind its thick wall, and pulled the closet door open with the string. Nothing calamitous resulted. The closet was stacked high with boxes. Looping a string around the boxes, Breslin went back out into the hallway and pulled the string. Again, no explosions resulted. Some of the boxes fell to the floor outside the closet. This test for explosives was repeated for several kitchen closets. Convinced that the apartment was not rigged with bombs, the Bomb Squad left.

 FBI Agent Maxwell -- who was not a member of the Bomb Squad -- went into the apartment after the special team left. Walking through the apartment he spied a red-stained surgical glove *fn2" near the bedroom closet. It was in "plain view" on top of the boxes Breslin earlier had tipped over.

 At approximately 7:30 a.m., FBI agent Cordier telephonically obtained a search warrant from Judge Haight of the Southern District of New York. The basis for the warrant was Cordier's sworn testimony regarding the discovery of the red-stained surgical glove, and the affidavit of agent Maxwell. After Judge Haight granted the search warrant, the agents conducted an exhaustive search of the apartment. The defendant moves herein to suppress all physical evidence seized pursuant to the search and arrest warrants, and the surgical glove found in "plain view" prior to the issuance of the search warrant.

 DISCUSSION

 A. Initial Search For Persons or Explosives

 It is by now deeply engraved in Fourth Amendment law that warrantless search and seizures are valid only in "a few specifically established and well-delineated" situations. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The government argues that the initial search falls within the amorphous boundaries of the exigent circumstances exception to the warrant requirement. It cites the recent line of Second Circuit cases permitting law enforcement officers who legally enter a premises to make an arrest, to carry out "a quick and limited 'security check' of the premises to be sure there are no third persons present who might destroy evidence or pose a safety threat to the officers." United States v. Martino, 664 F.2d 860, 869 (2d Cir. 1981), cert. denied, 458 U.S. 1110, 102 S. Ct. 3493, 73 L. Ed. 2d 1373 (1982) (citing United States v. Gomez, 633 F.2d 999 (2d Cir. 1980), cert. denied, 450 U.S. 994, 68 L. Ed. 2d 194, 101 S. Ct. 1695 (1981)); United States v. Agapito, 620 F.2d 324, 335-36 (2d Cir.), cert. denied, 449 U.S. 834, 66 L. Ed. 2d 40, 101 S. Ct. 107 (1980). The government argues by analogy that it was justified in searching for explosives because the agents "had ample cause to fear that Ferguson's apartment might contain explosives that would be dangerous to them or to other residents of the building." Government's Memorandum of Law at 32. The defendant responds that the government could search if at all, only if there were "probable cause" to believe that explosives were present. As expected, the defendant contends that the government did not satisfy this standard. *fn3"

 The facts of this case, however, do not require that I determine which standard of justification is appropriate. In United States v. Agapito, the court noted that a security check is reasonable because it "is intended to uncover only 'persons, not things.'" Id. at 336, quoting United States v. Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977) (emphasis added). "Once the security check has been completed and the premises secured, no further search -- be it extended or limited -- is permitted until a warrant is obtained." Id. Moreover, this case does not present the exigent circumstances present in United States v. Martino, which validated a seizure of evidence. In Martino, the court noted that the limited number of arresting officers, when combined with the co-conspirators still at large with easy access to the evidence which was in plain view in the defendant's backyard justified a warrantless seizure. This case does not present such exigent circumstances.

 Another more compelling reason requires suppression of the glove. Even if the Bomb Squad's search of the premises was lawful, Agent Maxwell's subsequent search lacks any justification. Once it had been determined that no explosives or other persons were in the apartment, agent Maxwell was not permitted to enter the apartment without a warrant. *fn4" ...


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