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.
I. DEFENDANT'S MOTION TO SUPPRESS.
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
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
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
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
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
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
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 ...