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December 18, 1991


The opinion of the court was delivered by: Larimer, District Judge.


Defendant has filed various motions seeking discovery, a bill of particulars and suppression of physical evidence and oral statements. The Court held argument on all motions and conducted an extensive suppression hearing.

This constitutes the Court's decision concerning the several pretrial motions filed by defendant.


Defendant moves to suppress physical evidence seized pursuant to a search warrant of his home at 3457 Latta Road, Greece, New York ("the premises") on February 15, 1990. Defendant does not challenge the execution of the search warrant. Rather, he maintains that the warrant was defective on its face because the description of the premises failed to describe the premises as a two-family dwelling.

Defendant also moves to suppress certain oral statements that he made to law enforcement officers during the execution of the search warrant. Defendant maintains that these statements were the fruits of the illegal entry and that the statements must be suppressed. In addition, defendant claims that he made these statements during interrogation by the police and that he never received any Miranda warnings. Therefore, defendant maintains that the statements must be suppressed under the Fifth Amendment.

A. Facts.

The Court conducted an extensive suppression hearing concerning the circumstances surrounding the application for the search warrant and its execution. Under Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), the hearing focused on the nature of the police investigation as to the type and description of the building to be searched.

In a nutshell, the officers who applied for the warrant believed from their observations of the premises that it was a single family residential home. The application for the warrant sworn to by Alcohol, Tobacco and Firearms (ATF) Agent Nancy J. Roward, described the premises as "3457 Latta Road, Greece, New York (2 story white wood colonial, 1 car attached garage, 2 car detached garage in rear. 3457 on mailbox in front of house)."

Defendant maintains that the warrant is defective because the premises at 3457 Latta Road was, and has been for many years, a two-family dwelling and that the defendant maintained the front apartment on the premises. Defendant's mother resided in a separate apartment in the rear. Defendant claims that the officers upon reasonable inspection and investigation should have known that the dwelling was a two-family unit and should have obtained a warrant only for his apartment.

Several law enforcement agencies including the Federal Bureau of Investigation (FBI), Rochester Police Department (RPD), and the Alcohol, Tobacco and Firearms Division of the Treasury Department had conducted an investigation concerning the manufacture and sale of firearm silencers in January and February 1990. On February 15, 1990, several targets of the investigation were arrested in Rochester, New York. These defendants included Leonard Stebbins, Michael Shea and Marvin Shacket. Messrs. Shea and Stebbins were arrested at approximately 2:00 p.m. and Shacket was in custody at least by 4:00 p.m. Shacket was taken to the FBI Office in downtown Rochester where he confessed to the manufacture and distribution of silencers and agreed to cooperate with the FBI. Special Agent Christopher Cuyler of ATF estimated that the interrogation of Shacket commenced between 4:30 and 5:00 p.m. on February 15.

During the debriefing of Shacket, he told the officers that he had sold ten silencers to a "Jesse Maneti" who lived on Latta Road in Greece, New York. Shacket was unable to provide the precise spelling of Maneti's last name and although he had a telephone number for Maneti, he did not know Maneti's precise address on Latta Road.

Through the use of a city directory, telephone books, a check with the Department of Motor Vehicles and Shacket's address book, the police determined that a Jesse Maneti lived at 3457 Latta Road and a decision was made to obtain a search warrant as soon as possible for that address.

The agents verified the address on Latta Road by using the Polk City Directory. Agent Roward testified that another agent had the book open to page 484 (Ex. 5A) where the name "Jesse Maneti" at 3457 Latta Road was listed. Roward testified that she only noticed the name Jesse Maneti at that address. She testified that she did not notice, prior to obtaining the warrant, that there were two other Maneti's listed at the same address, Mrs. Mary Maneti and Tyrone F. Maneti.

Shacket, Shea and Stebbins were all presented to the United States Magistrate that afternoon and had all been released from custody before the agents were able to obtain a search warrant from the same Magistrate. Several officers testified at the hearing that they were concerned that one or more of the individuals who had been arrested might notify Maneti and warn him of the arrests and the police investigation. The officers were anxious to obtain the warrant as soon as possible.

A decision was made to send several agents to the premises for two purposes: to obtain a description of the premises for the search warrant and to maintain surveillance of the property to monitor the activities there. It was determined that agents of ATF would perform these functions and Cuyler, a supervisor, directed several agents in two cars to report to 3457 Latta Road.

Scott Samis, an ATF agent, testified that he received the duty assignment to go to Latta Road at about 6:30 p.m. on February 15. He understood that his assignment was to get a description of the residence for the search warrant and he was to maintain surveillance of the property. Samis left the Federal Building with two other ATF agents, Thomas Clark, a 22 year veteran with ATF and Agent William Cook. Another car containing two other agents provided backup.

Samis testified that it had been snowing all day and that the roads were slippery and icy. Visibility was very poor. He described visibility as being only fifty to sixty feet as they drove toward the premises in Greece.

Neither Samis nor any of the agents who had accompanied him had ever heard of Maneti prior to that day and none of them had ever been to the premises. In fact, the agents were not from Rochester and they were not familiar with the area around Latta Road. The officers drove slowly down Latta Road until they found the mailbox with the numbers 3457. The agents drove past the house, turned around, came back and parked directly in front of the house. Samis estimated that he was approximately forty to fifty feet from the front of the house from his vantage point in the police car. Samis made all his observations of the house from the car. He was about ten feet from the roadside mailbox and he observed only one address on the box and the pole held only one mailbox and one plastic newspaper container.

He described the house as a two-story white colonial structure. He only observed one front entrance. There were conifer trees and bushes in front of the house which obscured much of his view. He could not see the west side of the building at all. The driveway was located on the east side and as he drove away from the premises he noticed that there was a two car detached garage in the rear. He described the house as "dark" and did not observe any lights either inside or outside the house. He said that visibility was poor and that it continued to snow when he made his observations of the house. He estimated that his observations of the house took about ten seconds. He did not recall making any particular observations about other houses in the immediate area. Because of the blowing and drifting snow, he could not determine if there was a sidewalk to the front door.

Samis testified that after he made his report, he then returned to the premises and set up surveillance across the street. He was at his post for almost two hours and during that time he made no observations that changed his opinion that this was a single family home.

Samis was a new agent and had entered on duty approximately eight months prior to execution of this warrant. He indicated that he had received training concerning search warrants and, although he had not prepared any warrants himself since becoming an agent, he had obtained descriptions of property for four other warrants.

Samis admitted that he received no specific instructions or directions from any of his superiors on the night in question as to what he should do to obtain a description of the premises. He knew it was important to be precise and he knew that it was important to distinguish between a single and a multiple family dwelling. Samis testified that he did not see any doors on the east side of the house during his initial observation. He discovered these doors later when he executed the warrant. Samis testified that the two other agents in the car concurred with the description that he transmitted over the radio to agents at the Federal Building.

ATF Agent Thomas A. Clark testified that he was brought in from Syracuse, New York, to assist in the arrests and search on February 15, 1990. Clark recalled hearing Agent Samis advise other agents in the Federal Building that the residence was a single family dwelling. He concurred with Samis that from their surveillance position, the house did appear to be a single family dwelling. Clark also recalled that the weather was very poor and that it was dark and raining during their surveillance.

Cuyler, an agent for nineteen years, testified that his agents were assigned to obtain a description of the premises. He assigned Agent Clark, a twenty-two year veteran and Samis who he knew to be a new agent. Cuyler was present when Samis telephoned in the description and he recalls hearing Samis describe the premises as a single family dwelling. In fact, Cuyler claimed that he questioned Assistant United States Attorney Anthony Bruce because Bruce did not make that notation on the warrant application. Cuyler went back on the radio and asked Samis to confirm that it was a single family unit.

Cuyler and Special Agent Nancy Roward were part of the team chosen to execute the warrant. There were approximately nine officers who executed the warrant. Four or five were stationed outside the premises and Cuyler, Roward and two others went to the door to enter the premises. As Cuyler went up the driveway and approached the side of the house, he noticed two doors there. When he first made this observation, he did not believe the door toward the front was an entrance to the premises but rather the entrance to some type of storage facility. The officers knocked on the rear of the two doors, announced that they were police officers and asked for Jesse Maneti. An older woman, who later turned out to be Maneti's mother, gestured to the other door toward the front of the building and directed the officers there. The officers went to that door and entered a small covered vestibule. They knocked on the inner door and were met by Maneti and his wife.

At this point, the officers entered the premises and advised Maneti of their purpose. Cuyler told Maneti that they were searching for silencers and that Maneti could help them find the silencers or the agents were prepared to stay there as long as it took to find them. Cuyler admitted that at no time did he advise Maneti of his so-called Miranda rights since Maneti was not arrested or taken into custody on that day. Maneti advised the agents that the silencers were in the basement and he took them there and pointed to a stove where the silencers were located.

Maneti repeatedly asked the agents if he was going to be arrested and they assured him that he would not be arrested that evening. Cuyler said that he received instructions from Assistant United States Attorney Bruce not to arrest Maneti unless there were difficulties at the premises.

During the ensuing conversation with Agent Cuyler, Maneti made several incriminating statements. Some of these statements occurred when the agents found weapons and other material in the house. Maneti would be asked about the items and he freely discussed his activities concerning those items.

The defense submitted proof from several different sources that 3457 Latta Road was a two-family dwelling on February 15, 1990. Defendant's mother, Mary Minnitti,*fn1 testified that she had occupied the rear apartment at the premises for 14 years. Her apartment was completely separate from the front apartment which was occupied by her son and his family. She testified that there was no common access from her apartment to her son's except that there was a door in the basement between her part of the basement and her son's part.

Mrs. Minnitti also corroborated the agent's testimony that they came to her apartment first and she directed them to her son's apartment in the front of the house.

It is clear from both Mrs. Minnitti's testimony and agents that no entry into or search of her apartment was made on the date in question.

Mrs. Minnitti also corroborated the agent's testimony concerning the weather that evening. She recalled that it was raining heavily when the agents arrived.

Representatives from the local telephone company (Rochester Telephone Company) and the local utility company (Rochester Gas and Electric) testified that separate telephone, gas and electric service was provided to the two apartments at 3457 Latta Road. Both representatives indicated that this separate service had been provided for many years. The Rochester Gas and Electric records showed separate service for the "front" and "rear" of 3457 Latta Road. The Rochester Telephone Company records show that one phone was listed in the name of Mary Minnitti and another in the name of Jesse Maneti. Both representatives testified that subscriber information was always available to designated police agencies.

There was testimony submitted by both the Government and the defense concerning town records that described the permissible use for the premises. One town planner, Michael Bonanza, testified for the Government that after he reviewed the record, it was his opinion that the premises in question was zoned "single family residential" and that was the only permissible use. He conceded that building department records showed that there was an application for a variance as a two family unit in 1969, but this was conditioned on installation of a proper septic system. In his opinion, because the records did not satisfy him that such a system had been installed and approved, Bonanza concluded that the premises still could only be used as a single family residence.

The defense presented contrary testimony from another town official, Deputy Building Inspector Paul J. Czapranski. Czapranski examined some of the same records and it was his opinion that the property was properly maintained as a two family dwelling. There was a town resolution approving a variance to maintain the premises as a pre-existing multiple family dwelling subject to installation of a septic system. His review of the records indicate that someone had approved the septic system. Furthermore, he determined that because a certificate of occupancy had been issued that the town must have determined that the owner was in compliance with all zoning requirements.

Prior to obtaining the warrant, none of the agents contacted the Rochester Telephone Company, Rochester Gas and Electric Company, the United States Postal Service or the Town of Greece concerning the premises or its occupants.

Defendant also submitted as part of his proof, two video recordings that he made of his home and the area surrounding it on December 24, 1990 and January 3, 1991. These videos were taken on a bright, clear day. Obviously, these videos do not accurately portray the precise conditions on February 15, 1990, because the video was made many months after the search warrant was executed. In addition, the video was filmed during daylight hours on a clear day, while the officers observed the premises on a dark, rainy evening. Nevertheless, the Court received the exhibits for the limited purpose of viewing the general condition of the premises and the nature of the neighborhood. The Court also received photographs submitted by both sides which depict the condition of the premises.

The videos and the photographs show 3457 Latta Road to be a large white two-story colonial farmhouse. The building appears to be much larger and older than the other houses on the same side of the street. These other houses appear to be single-family, ranch-style homes. There is a commercial farm market across the street.

It is clear that the house is large, but only when one observes it from the side and can see that it stretches back for some distance into the lot. When one views the house from the front, it merely appears to be a traditional white colonial with a porch. The size of the house is not apparent from the front. The videos clearly show several very large evergreen trees and shrubs, which block portions of the front of the house as well as the east and west sides of the house. There is a large evergreen that blocks the view from the road on the west side of the house, where the electric meters are located. The best view of that side of the house is obtained by leaving the road and walking into the vacant adjacent lot next to the premises. Even in the daylight, the several large evergreens and shrubs block a ...

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