interest in the searched premises at the time of the search. Palazzolo has failed to claim a property or proprietary interest in the vehicle searched. Indeed, he has failed to explain how he came to be in the vehicle in the first place.
Even accepting Palazzolo's claim that Olivieri produced registration documents -- a claim denied by the officer in question and a matter about which Palazzolo does not have personal knowledge -- neither Palazzolo nor any other defendant alleges that the vehicle was registered in the name of any occupant of the vehicle. In fact, the car was not registered to any occupant of the car.
The burden is on Palazzolo to establish a "legitimate basis for being in" the vehicle: "the burden is not on the police to show that defendants were in the car illegitimately. The burden is on the defendants to show a legitimate basis for being in the car." Id. at 649. Palazzolo's affidavit provides no additional evidence concerning this issue. Palazzolo has offered nothing other than his status as a passenger in the vehicle to establish standing, and the Second Circuit has clearly held that his status is insufficient, because "as a passenger he had no right to exclude others from the vehicle." United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988), cert denied, 490 U.S. 1052, 109 S. Ct. 1967, 104 L. Ed. 2d 435 (1989).
Defendant Aulicino has filed a reply brief which claims that a hearing is now necessary because Palazzolo's affidavit "demonstrates that Olivieri, Palazzolo and Aulicino were lawfully in the car and have standing to object to a search of it." Defendant Robert Aulicino's Reply Memorandum of Law In Support of Pre-Trial Motions, at pp. 7-8. Palazzolo's affidavit, of course, utterly fails to provide any information demonstrating that Olivieri, Palazzolo and Aulicino were legitimately in the Buick. Even if Olivieri could establish that he had lawful custody of the vehicle, Aulicino -- as a mere passenger -- would still lack standing to object to a search of the vehicle.
In United States v. Padilla, 53 Cr L Rep 2109 (USSC May 3, 1993), the Supreme Court confronted a Ninth Circuit case holding that a co-conspirator "obtains a legitimate expectation of privacy for Fourth Amendment purposes if he has either a supervisory role in the conspiracy or joint control over the place or property involved in the search." The Supreme Court reversed, reaffirming that defendants must demonstrate a "legitimate expectation of privacy in the area searched." In reversing, the Court reaffirmed its holding in Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), where the Court concluded that passengers in a car had no standing to challenge the seizure of a rifle and ammunition from that car.
Because defendant Aulicino has failed to carry his burden to establish standing, his motion to suppress evidence seized from the second Buick must be denied. See also United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (defendants have no standing to challenge a search and seizure of evidence from an apartment rented by the mother of one of the defendants); Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (defendants have no standing to challenge the seizure of evidence from a car in which they were riding, but which they did not own).
C. Even Assuming Standing As To All Three Defendants, There Is No Basis For Suppressing The Seized Evidence
Even granting standing to challenge the automobile searches here, defendants motions to suppress must still fail.
Initially, no defendant submitted an affidavit based on personal knowledge concerning the circumstances of the search. The defendants submitted attorney's affidavits alleging certain facts "upon information and belief." see, e.g., Benfante Aff. at 54-55; Freeman Aff. at PP 29-30. Such affidavits are completely inadequate to raise a factual issue justifying a hearing: "In order to raise a factual issue concerning the validity of a seizure such that a hearing is required, the defendant must support his claim with an affidavit based on personal knowledge." United States v. Vasta, 649 F. Supp. 974, 986 (S.D.N.Y. 1986); see also United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967) ("The affidavit submitted for appellant is insufficient in that it does not, for example, allege personal knowledge on the part of appellant's attorney; accordingly, there was no factual issue to be resolved and the denial of a hearing was correct."); United States v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y. 1989) ("the defendant must show 'that disputed issues of material fact exist before an evidentiary hearing is required' . . . The required showing must be made by an affidavit of someone with personal knowledge of the underlying facts."); United States v. Caruso, 684 F. Supp. 84, 87 (S.D.N.Y. 1988); United States v. Gregory, 611 F. Supp. 1033, 1044 (S.D.N.Y. 1985) (Weinfeld, J.). Accordingly, their motions to suppress fail on this ground alone. Even if this Court were to reach the question of Officer Walsh's conduct, however, it would find that his actions were entirely proper.
Officer Walsh approached the first Buick after receiving a radio call concerning a carload of suspicious men outside a residence which had been previously robbed. The car was illegally parked and did not bear a proper registration sticker. When Officer Walsh asked Cleary, the driver of the first car, for registration and insurance documents, Cleary was unable to produce either, and denied even knowing who the owner of the vehicle was. "Section 401(4) of the New York Vehicle and Traffic Law requires any motorist to produce, upon demand of a police officer, the registration certificate of the automobile that he is driving . . . . Failure to produce a valid registration creates a rebuttal presumption of operating an unregistered vehicle in violation of New York Vehicle and Traffic Law § 401(4)." United States v. Rosario, 417 F. Supp. 80, 81-82 (S.D.N.Y. 1976). On these facts, Officer Walsh was authorized to arrest Cleary for unauthorized use of a motor vehicle and to impound the vehicle he was driving. See N.Y. Penal Law § 165.05 (unauthorized use of a motor vehicle in the third degree); United States v. Rosario, 417 F. Supp. at 82; People v. Gonzalez, 62 N.Y.2d 386, 477 N.Y.S.2d 103, 465 N.E.2d 823 (1984) (where driver is arrested police are authorized to impound vehicle and conduct an inventory search); People v. Shepley, 185 A.D.2d 862, 587 N.Y.S.2d 368 (2d Dept. 1992) (seizure and search of vehicle proper where driver failed to produce registration); People v. Galak, 182 A.D.2d 702, 582 N.Y.S.2d 469 (2d Dept. 1992) (vehicle properly searched where driver was arrested after failing to produce license, registration and proof of insurance); People v. Robinson, 36 A.D.2d 375, 320 N.Y.S.2d 665 (2d Dept. 1971) (vehicle properly impounded and searched where driver could not produce registration or proof of insurance); People v. Griffin, 116 Misc. 2d 751, 456 N.Y.S.2d 334 (1982) (police authorized to arrest driver and impound vehicle where driver could not produce license or registration).
It is well established that "'when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.'" United States v. Perea, 986 F.2d 633 (2d Cir. 1993) (quoting New York v. Belton, 453 U.S. 454, 457, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981)). Accordingly, Officer Walsh's search of the Cleary vehicle would have been entirely proper as a search incident to a lawful arrest. Having observed a bullet in the rear of the car, however, the police had probable cause to search the vehicle, and any containers inside the vehicle, even in the absence of Cleary's arrest. California v. Acevedo, 114 L. Ed. 2d 619, 111 S. Ct. 1982, 1991 (1991); Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925) (permitting the warrantless search of a movable vehicle where there is probable cause to believe that the vehicle contains contraband or other evidence of a crime). *
Officer Walsh's initial approach to the second Buick was also entirely lawful. After recovering the firearm from the first Buick and arresting the occupants, Officer Walsh observed a very similar second Buick, bearing a nearly identical license plate and a temporary registration, approaching the first Buick. The second Buick had a broken rear window. Police are authorized to stop vehicles which are improperly registered and which have a broken or cracked windshield. People v. Meyers, 139 A.D.2d 601, 527 N.Y.S.2d 93 (2d Dept. 1988); People v. Kim, Mis.2d , N.Y.L.J. 2/5/92 (Sup. Ct. Queens Cty. 1992). Moreover, a bystander approached Officer Walsh and told the officer that the occupants of the second Buick were "with" the arrested individuals in the first Buick, and that the second Buick's occupants also had guns. Under these circumstances, Officer Walsh certainly had a "reasonable suspicion of criminal activity," even absent the traffic law violation. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). *
Officer Walsh asked the driver of the second Buick, defendant Richard Olivieri, for registration and insurance documents. Olivieri, like Cleary, was unable to produce any paperwork concerning the car he was driving. Having probable cause now to arrest Olivieri for unauthorized use of a motor vehicle, see N.Y. Penal Law § 165.05, United States v. Rosario, 417 F. Supp. at 82, People v. Griffin, 116 Misc. 2d 751, 456 N.Y.S.2d 334 (1982), Officer Walsh asked Olivieri to get out of the car. A patdown revealed that Olivieri had a loaded semi-automatic handgun in his waistband. Officer Walsh then had probable cause to arrest Olivieri for criminal possession of a weapon. In accordance with the aforementioned principles, the subsequent search of the Olivieri vehicle was entirely proper both as a search incident to a lawful arrest and as an inventory search. United States v. Perea, 986 F.2d 633; New York v. Belton, 453 U.S. at 457; People v. Shepley, 185 A.D.2d 862, 587 N.Y.S.2d 368 (2d Dept. 1992).
Defendants have offered no factual basis or legal theory justifying suppression of the evidence seized during the automobile searches. Accordingly, their motions to suppress this evidence are summarily denied without a hearing.
II. Evidence Implicating Identification Procedures
Basing their motions entirely on speculation, Aulicino, Cleary, Palazzolo and Olivieri demand a pretrial hearing concerning the procedures by which photo arrays were shown to witnesses, and the reliability of the witnesses' identifications. Because defendants have failed to make any showing that the procedures used were suggestive, and because any questions concerning the reliability of witnesses' identifications can be properly raised on cross-examination, no pretrial hearing is required.
In order to prevail on their motions to suppress the identification evidence, the defendants are required to show, first, that the pretrial identification procedure was unnecessarily suggestive, and second that "in all the circumstances, there is 'a very substantial likelihood of irreparable misidentification'" at trial. United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990), cert. denied, 115 L. Ed. 2d 1025, 111 S. Ct. 2858 (1991) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968)); see Stovall v. Denno, 388 U.S. 293, 301-02, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). Because defendants -- who have received copies of the photo arrays*-- fail to make a threshold showing of suggestiveness, no hearing is required. See United States v. Leonardi, 623 F.2d 746, 755 (2d Cir. 1980) (trial court was correct in not requiring pretrial testimony of identifying witnesses where there was no threshold showing of suggestiveness), cert. denied, 434 U.S. 872 (1977).
Two of the defendants "support" their motion with the speculative claim that witnesses who identified the defendants were shown a single photograph to suggest which individual to pick out of a subsequent photo array. (Cleary Br. 13; Olivieri Br. 59). Palazzolo demands a hearing without making any claim whatsoever that relates to the identification procedures. Aulicino claims that the identifications obtained were "questionable" (Aulicino Br. 5), and moves for suppression of any testimony relating to identification. (Krakow Aff., P 7). Aulicino simultaneously maintains, however, that he has no basis to determine whether the "identification was unnecessarily suggestive." (Aulicino Br. 6).
We are advised that five witnesses whom the Government expects will identify the defendants at trial were shown photo arrays. See Affidavit of Detective Joseph Marrero ("Marrero Aff.") at P 2, attached as Exhibit A to Gardephe Aff.; Affidavit of Detective Angelo Cioffi ("Cioffi Aff.") at P 2, attached as Exhibit B to Gardephe Aff. With one exception, the investigating detectives asked the witnesses to view only photo arrays. (Marrero Aff., P 3; Cioffi Aff., P 3). In one instance, approximately two months before being shown the photo arrays, a witness was shown single photographs of the defendants, among others. (Marrero Aff., P 3). Because that witness had observed or met on numerous occasions with the defendants he/she identified, the witness had an independent basis from which to recognize the defendants that existed before he/she saw the photographs. (Marrero Aff., P 3). Although the defendants baselessly speculate that improperly suggestive techniques were used before displaying the photo arrays to witnesses, no defendant claims that the photo arrays themselves are in any way suggestive.
Even assuming that the facts are as defendants suggest, a pretrial determination is neither necessary nor appropriate in this case. As an initial matter, the Constitution does not require trial courts to hold pretrial hearings concerning the suggestiveness of an identification procedure. Watkins v. Sowders, 449 U.S. 341, 349, 66 L. Ed. 2d 549, 101 S. Ct. 654 (1981). Whether to hold such a hearing is a matter within the trial court's discretion. See United States v. Archibald, 734 F.2d 938, 940 (2d Cir.), modified on rehearing on other issues, 756 F.2d 223 (2d Cir. 1984); see also United States v. Smith, 546 F.2d 1275, 1279 (4th Cir. 1977) (leaving decision in discretion of trial court).
A pretrial hearing in this case is not appropriate because the defendants' concerns can be satisfied at trial. The Supreme Court has concluded that a court is not required to conduct an evidentiary hearing on identification testimony outside the jury's presence. Watkins v. Sowder, 449 U.S. at 349. Because determinations of reliability are traditionally put to the jury, the Supreme Court has held that conducting such a hearing in the jury's presence is constitutionally permissible. Id. at 348-49. Defendants' due process rights and the reliability of the identification evidence can be ensured through the "time-honored process of cross-examination" "the device best suited to determine the trustworthiness of testimonial evidence." Watkins v. Sowder, 449 U.S. at 349.
Accordingly, the motion for a pretrial hearing on the reliability of the anticipated in court identifications is denied.
III. Evidence Seized From Defendant Olivieri's Apartment
Since the defendant Olivieri is alone possessed of standing to challenge the search of his apartment at 1130 Stadium Avenue, and since he has pleaded guilty and withdrawn his pretrial motions attacking the admissibility of this evidence, his claim of illegality in the seizure of this evidence is moot, and the remaining defendants are without standing to assert it. We observe parenthetically that Olivieri's papers are utterly bereft of any non-speculative substance that would justify the Franks hearing that he demanded.
IV. The Severance Motions
Defendant Aulicino has moved for a severance based upon Bruton v. United States, 391 U.S. 123, 137, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) on the ground that the Government intends to introduce at trial a pre-arrest, hand-written statement of Olivieri that implicates Aulicino. Bruton, and its progeny, do not reach pre-arrest statements. In any case, since Olivieri has pleaded guilty and the parties agree that no Bruton issue remains, Aulicino's motion is, in large measure moot, and to the extent that it continues to be pressed on other grounds, it is denied as insufficiently supported. The severance motions of Ruggiero and Cleary are mooted on their principal ground in light of the Court's ruling herein precluding Aulicino's proposed cross-examination of Augustine relating to the obstruction matter. To the extent that they press their severance claim on other, more general grounds, it is denied as insufficiently supported. We observe finally that the Government expects to complete its case against the remaining three defendants in no more than four weeks.
V. Further Discovery and Bills of Particulars
For the reasons convincingly stated in the Government's Memorandum of Law In Opposition to Defendants' Pretrial Motions, dated March 16, 1993, 27-44, the defendants' demands for further disclosure of the Government's evidence, except as consented to by the Government, are denied.
VI. Striking of Aliases From Indictment
Cleary has moved to strike all aliases from the Indictment, arguing that these references are irrelevant and prejudicial surplusage. (Benfante Aff. at 57). The Second Circuit has allowed the use of aliases, where relevant to the anticipated proof at trial. See, e.g., United States v. Miller, 381 F.2d 529 (2d Cir. 1967), cert. denied, 392 U.S. 929, 20 L. Ed. 2d 1387, 88 S. Ct. 2273 (1968). The appropriate standard of relevance is set out in United States v. Clark, 541 F.2d 1016, 1018 (4th Cir. 1976):
If the Government intends to introduce evidence of an alias and the use of that alias is necessary to identify the defendant in connection with the acts charged in the indictment, the inclusion of the alias is both relevant and permissible.
At trial, the Government asserts that it will prove that Cleary used the nicknames "Heavy D" and "Anthony Monti" at the time of the events referred to in the indictment. Proof of these nicknames and aliases will be necessary to identify him as the individual who engaged in various acts charged in the indictment. For example, the Government states that it will offer proof at trial that when confronted by police outside kidnapping victim Jorge D'Avila's residence, Cleary identified himself as "Anthony Monti." Proof that Cleary used a false name is obviously highly relevant, as it demonstrates consciousness of guilt. Similarly, Cleary's Jaguar carried a vanity license plate bearing the name "Heavy D." Testimony at trial concerning this license plate and Cleary's use of this name will, according to the Government, assist the jury in finding Cleary's participation in certain of the charged offenses. Similarly, the Government states that references to other defendants' aliases are used in taped conversation which will be offered at trial, and because witnesses will use these aliases in discussing the defendants' conduct at trial, they are relevant.
As the court observed in United States v. Esposito, 423 F. Supp. 908, 911 (S.D.N.Y. 1976), "inclusion of the aliases in the indictment is proper and, indeed, may well serve to obviate jury confusion." See also, United States v. Ianniello, 621 F. Supp. 1455, 1479 (S.D.N.Y. 1985) (Weinfeld, J), aff'd 808 F.2d 184 (2d Cir. 1986); 1 Wright, Federal Practice and Procedure, § 127 at 427-28 n.28 (1982) (collecting cases). The motion to strike aliases from the indictment is therefore denied.
VII. Audibility Hearing
Without citing any particular tapes or transcripts, defendant Cleary requests a hearing "to determine the intelligibility of tapes and the accuracy of transcripts" that the Government intends to offer at trial. (Benfante Aff. at 34).
He has, however, failed to identify any tape which is inaudible, or any transcript which is inaccurate. Under these circumstances, he has provided no justification for a pretrial hearing concerning this issue, and, accordingly, his application for an audibility hearing is denied.
We now turn to the defendants' motion to suppress electronic surveillance evidence.
VIII. The Wiretap Evidence
The Government states that it intends to introduce at trial tape recordings of conversations intercepted over David Cleary's telephone -- located at 33 Oak Street, Hackensack, New Jersey --and over Louis Ruggiero, Jr.'s telephone -- located at 451 Borough Lane, Palisades, New Jersey. These conversations were intercepted in April, May, and June 1991 by investigators assigned to the office of John J. Fahy, the Bergen County Prosecutor, pursuant to orders issued by New Jersey Superior Court judges.
Although the tape evidence at issue was obtained by New Jersey state investigators acting pursuant to wiretap orders issued by New Jersey state court judges, the appropriate standard of probable cause for deciding defendants' motions here is the federal "totality of the circumstances" test. In United States v. Rowell, 903 F.2d 899 (2d Cir. 1990), the Second Circuit confronted wiretap evidence obtained by the Monroe County district attorney pursuant to a wiretap order signed by a county court judge. The Court explicitly rejected Rowell's claim that New York state law should govern his lack of probable cause claim, rather than federal law:
In United States v. Pforzheimer, 826 F.2d 200, 202 (2d Cir. 1987), we addressed the issue of "whether the state or federal exclusionary rule should be applied in ruling on a motion to suppress evidence in a criminal trial in federal court when the evidence in question was solely the product of a state investigation." We concluded that "federal law should apply to . . . federal criminal prosecutions, even though the underlying investigation leading to prosecution was conducted solely by state officials." Id. at 204 . . . . As the opinions in Pforzheimer and Nersesian make clear, the appropriate standard of probable cause for determining Rowell's motion to suppress the wiretap evidence is the federal "totality of the circumstances" standard.