reliability. Moreover, defendant contends that the statements are highly irrelevant, and even prejudicial, in that they refer to prior acts of alleged misconduct by defendant. Finally, defendant argues that his own statements made to Agent Maxwell do not support a finding of probable cause because it is impossible to determine whether such alleged statements were voluntarily made, especially when Agent Maxwell conceded that defendant's speech during the interview was "rambling, disjointed, and difficult to follow."
Probable cause exists for issuance of a search warrant when there is a "fair probability" that the premises will yield the subject specified in the search warrant. United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983). Determinations by magistrates who issue warrants are "accorded great deference and 'any doubts should be resolved in favor of upholding the warrants.'" United States v. Vasquez, 634 F.2d 41, 45 (2d Cir. 1980).
In the case of hearsay information contained in an affidavit in support of a search warrant, the hearsay can suffice to establish probable cause provided there is a substantial basis for crediting the hearsay. United States v. Zucco, 694 F.2d 44, 46-48 (2d Cir. 1982). In this case, defendant's parents could have had reason to falsify their statements. Unlike the case in United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), were the Second Circuit held that an unrelated bystander had no apparent motive to falsify, here defendant's parents were living with their son in the same house. Based on this fact alone, the court finds that there is an insubstantial basis for crediting the hearsay.
Conversely, the court does not believe that the voluntariness of defendant's statements was sufficiently questionable to prevent their use in the probable cause determination. But even if the mental condition of defendant was sufficiently suspect, and the testimony of defendant's parents should not have been credited, including such evidence in the warrant application would not necessarily undermine a finding of probable cause where other evidence is sufficient to establish probable cause. See Vasquez, 634 F.2d at 45. Here, there was an overwhelming amount of detailed information set forth in agent Maxwell's affidavit for Magistrate-Judge DiBianco to conclude that there was a "fair probability" that the premises would yield guns and ammunition. Of great significance is the fact that defendant voluntarily showed Agent Maxwell several guns and ammunition during the May 8, 1991 interview. Since there is no question of fact created by defendant's motion to suppress on the probable cause argument, a pretrial suppression hearing is unnecessary.
Defendant lastly contends that the search warrant was overbroad in that it permitted law enforcement officials to search the entire subject premises, with no limitations, including all outbuildings and appurtenances. Defendant argues that the warrant should have been limited to areas within the control of defendant.
The warrant clause of the Fourth Amendment prohibits the issuance of any warrant except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." The Supreme Court reviewed the basis for the particularity requirement in Maryland v. Garrison as follows:
By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prevent.
480 U.S. 79, 84 (1987).
Generally, where a structure is divided into more than one unit, probable cause must exist for each unit to be searched. However, where the premises are occupied in common, or defendant is in control of the entire premises, probable cause need not be set forth in order to search each unit. United States v. Gonzales, 697 F.2d 155, 156 (6th Cir. 1983); United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980), cert. denied, 450 U.S. 1004, 68 L. Ed. 2d 208, 101 S. Ct. 1717 (1981). Further, the Supreme Court has stated that "[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1980).
In this case, Agent Maxwell was justified in believing that defendant had control of the entire premises such that the subject of the search warrant could be located anywhere in the residence, outbuildings, or appurtenances thereto, and agent Maxwell had probable cause to search the entire premises. Therefore, defendant's motion to suppress tangible evidence is denied.
C. Suppression of statements made by defendant
Defendant seeks to suppress statements he made to agent Maxwell at his parent's house on May 8, 1991 on the ground that they were not made voluntarily. Defendant contends that his mental state during the interview is clearly at issue based on the fact that agent Maxwell described his speech as rambling, disjointed and difficult to follow, all factors which defendant argues point to involuntariness. The involuntary nature of the statements is allegedly further illustrated by defendant's belief that he was not free to leave or to terminate the interview. As such, defendant contends that he should have been Mirandized before being questioned. Defendant also contends that Agent Maxwell improperly failed to inform him that he did not have to consent to the interview. If the court is not inclined to suppress the statements based on these facts alone, defendant seeks a suppression hearing regarding this issue.
The court believes that it was unnecessary for agent Maxwell to read defendant his Miranda warnings, for the reason that the defendant was not in custody at the time he was questioned. Defendant's professed belief that he was not free to leave his house or to refuse to answer questions was not justified under the circumstances. Cf. Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984) ("the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation"); United States v. Hall, 421 F.2d 540, 544-45 (2d Cir. 1969), cert. denied, 397 U.S. 990, 25 L. Ed. 2d 398, 90 S. Ct. 1123 (1970). There is no evidence that defendant was ever told by agent Maxwell that he could not leave, nor is there evidence that defendant was treated uncourteously at his home by agent Maxwell. Further, defendant was never threatened with arrest if he refused to cooperate. See United States v. Guarno, 819 F.2d 28, 32 (2d Cir. 1987) (failure of federal agents to threaten defendant with arrest if he refused to cooperate indicates defendant was not in custody). The failure of Agent Maxwell to tell defendant that he could refuse to answer questions also is not determinative. See Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Therefore, Agent Maxwell's failure to advise defendant of his rights does not require suppression of defendant's statement.
The court finds nothing in the submissions of the parties to demonstrate factual issues necessitating a suppression hearing on this issue at this time. The Second Circuit recently set forth the principles guiding a determination of whether a defendant is entitled, as a matter of law, to an evidentiary hearing to resolve questions of admissibility. Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir. 1991). In holding that the trial judge acted within his authority in first admitting selected portions of a government investigation without an evidentiary hearing and in later allowing defendants to contest the trustworthiness of the report in a post-trial hearing, the Second Circuit held:
In general, an evidentiary hearing need not be granted as a matter of course and must be held "only if the moving papers allege facts with sufficient definiteness, clarity and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved." United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972). General and conclusory factual allegations which are based upon mere suspicion or conjecture, however, will not suffice to necessitate a hearing. Cohen v. United States, 378 F.2d 751, 760 (9th Cir.), cert. denied, 389 U.S. 897, 19 L. Ed. 2d 215, 88 S. Ct. 217 (1967). Moreover, if facts urged in support of a hearing would not entitle the moving party to relief as a matter of law, no evidentiary hearing is required. See United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980).
Gentile, 926 F.2d at 148 (quoting United States v. Boffa, 89 F.R.D. 523, 528 (D.Del. 1981)).
The court finds that defendant's affidavit fails to set forth facts which, if proven, would support suppression of his statement. There is no evidence of coercion on the part of agent Maxwell. Further, no reason is given for why defendant felt he was not free to refuse to answer questions. The court therefore concludes that defendant's "moving papers [do not] allege facts with sufficient definiteness, clarity and specificity to enable the court to conclude that relief must be granted if the facts alleged are proved." United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972). Defendant's request for a suppression hearing is therefore denied.
Defendant also moves to preclude from use at trial any and all other statements he may have made to government agents. Defendant offers no basis for the court to grant such a request, and it is therefore denied. In the alternative, defendant requests that he be provided with any such additional statements, and be granted leave to file any necessary motions regarding such statements. As will be discussed below, the government has acknowledged its continuing duty to provide Brady material, and the court therefore confines its ruling on the instant request to a direction that the government comply with this duty.
D. Brady material
Defendant seeks disclosure, under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1983), of any and all evidence in the possession of the government which may be favorable to the defendant or aid defendant in the preparation of an adequate and proper defense.
The government recognizes its obligation to turn over all manner of Brady material at the appropriate times. Accordingly, the court need not make a substantive ruling and merely directs the government again to comply with this duty.
E. Right to make further motions
Defendant requests that he be allowed to make additional pre-trial motions as the need arises. The government does not object to this request, so long as said motions could not have been made with due diligence as part of defendant's first set of omnibus motions. The court grants defendant's motion with the aforementioned limitation.
Based on the foregoing reasons, defendant's motions to dismiss, to suppress tangible evidence, and to suppress statements are denied.
It is So Ordered.
Dated: March 17, 1992
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE