The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
At a pretrial conference on May 20, 1993, it was agreed that to decide the motion before trial based on defendant's first theory would require two trials of the assault case -- one in the setting of a suppression motion and the other the trial itself, which would have to go forward regardless of the outcome of the motion. Therefore, it was agreed that that decision will abide the trial, where defendant may testify or present other evidence out of the presence of the jury in connection with the suppression motion if he chooses to do so. It was agreed that defendant's second theory, that the government lacked a legal basis to search him even on its own version of the facts, can be decided based on the papers submitted thus far, which include both a sworn complaint and an affidavit setting forth the government's version of the facts. (5/20/93 Tr. 2-4)
For the reasons set forth below, the motion, insofar as it is based on defendant's second theory, is denied.
On February 26, 1993, a bomb exploded in a garage at the World Trade Center complex in Manhattan, causing six deaths, numerous injuries, and massive destruction. A search through the debris at the explosion site disclosed parts of the vehicle that had contained the bomb, including a part that carried the alphanumeric impression of a portion of the vehicle's identification number. (Kuby/Kunstler Aff. Ex. B, p.2) The vehicle was identified and traced to a rental company, where it was determined that it had been rented by a person named Mohammad Salameh, who carried a New York driver's license with the address 57 Prospect Park, S.W., Apartment 4C, Brooklyn, New York. (Id. at 2-3) Salameh was arrested on the morning of March 4, 1993, and the fact of an arrest was widely broadcast the same day. (Kunstler/Kuby Aff. Ex. C, p.3) Also on that day, a magistrate judge in Brooklyn issued a search warrant for the apartment referred to on Salameh's license, which is the residence of this defendant and his family.
That warrant authorized a search for explosives and related devices, among other things. (Kunstler/Kuby Aff. Ex. A)
The same day, agents went to defendant's address to execute the warrant. The government's version of what happened when they got there is contained in the complaint sworn to March 4, 1993, and in the somewhat more expansive May 11, 1993 affidavit of Thomas F. Corrigan, a detective with the New York City Police Department assigned to a task force operating under federal authority. According to the Corrigan affidavit, officers waiting outside defendant's apartment building saw him leave the building and begin to walk down the block, and an order was given to execute the search warrant. At that time, defendant suddenly stopped, turned around, and began to walk back toward the building, where he could see law enforcement officers entering the building to execute the warrant. (Corrigan Aff. PP 3-5) Corrigan's account continues as follows:
6. As the defendant walked towards the building in which fellow law enforcement personnel were executing the search warrant, his hands were in his coat pockets and as he approached the building his pace quickened.
7. Fearing that the defendant posed a threat to the agents and officers executing the search warrant, I followed the defendant. When I caught up to him, I identified myself as a police officer (I also was wearing my FBI-NYCPD "raid jacket" and my identification shield) and removed the defendant's hands from his pockets to determine whether he had any weapons in his hands.
8. After further identifying myself as a police officer, I requested that the defendant place his hands against a wall. When the defendant refused to comply, I and a fellow member of the [task force] physically placed the defendant's hands against the wall.
9. As we did so, I conducted a "pat down" search of the exterior of the defendant's clothing. As I did so, I felt a rectangular object in the defendant's breast pocket, which I thought may have been plastic explosives.
10. Realizing we may need assistance, I and another member of the search team then began to escort the defendant toward the building where fellow agents and officers were executing the search warrant. As we approached the building entrance, we attempted to secure the defendant with his hands placed against the wall.
11. At that time, the defendant abruptly swung his elbow at me, striking me in the face. He also struck the agent who was with me. After the ensuing ...