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UNITED STATES v. ZANFORDINO

October 18, 1993

UNITED STATES OF AMERICA
v.
CHARLES ZANFORDINO, GLORIA DEANS, and EFRAIM HARVEY, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 I

 VINCENT L. BRODERICK, U.S.D.J.

 Three defendants are charged in this case with involvement in an armed robbery of the Eastchester Savings Bank in Pelham, New York. *fn1"

 Defendant Charles Zanfordino ("movant") seeks (1) suppression of sneakers taken from him while in custody and laboratory reports linking those sneakers to the robbery; (2) severance of the trial from that of defendant Gloria Deans because the prosecution expects to offer a statement by her that she was a girlfriend of movant and had no knowledge of the robbery; (3) disclosure of laboratory notes and similar material relating to examination of the sneaker prints, and (4) disclosure of local police reports.

 For reasons set forth below, defendant Zanfordino's motions are disposed of as follows:

 (1) I deny the motion to suppress.

 (2) I deny the motion for severance as premature inasmuch as it is possible that the statement cited may not be offered; if offered it is possible that it may not be admitted; and if admitted it may not turn out not to be prejudicial to the movant.

 (3) I grant the motion for discovery of material related to the laboratory identification of movant's sneakers to the extent that all material generated or utilized by experts who are expected to testify or by persons reporting to them is to be produced prior to trial for inspection by defense counsel.

 (4) I grant the motion for disclosure of local police reports relating to movant made during the period September through December 1991 on the bases set forth in this paragraph. Defense counsel may submit a proposed a subpoena for such records under Fed.R.Cr.P. 17. The proposed subpoena must be furnished to the United States Attorney and filed for my consideration within 10 days of the date of this memorandum order to avoid unnecessary delay. It must specify that local authorities may furnish the subpoenaed materials directly to me for initial in camera inspection if it is believed that disclosure to defense counsel might be prejudicial to ongoing investigations. See United States v. Zolin, 491 U.S. 554, 105 L. Ed. 2d 469, 109 S. Ct. 2619 (1989).

 II

 Pursuant to a search warrant issued by a state judge on September 13, 1991, police seized two black Reebok sneakers in the possession of the movant. In the affidavit seeking the warrant, detective Joseph Kaminski, Pelham Police Department, stated that he had interviewed a witness who observed the movant, wearing black Reebok sneakers, jump onto a counter in the Eastchester Savings Bank on September 5, 1991 during a robbery of that bank. Kaminski further stated that he observed sneaker prints with the word "Reebok" on the bank counter, and that he had observed the movant wearing black Reebok sneakers while in custody. Under the Fourth Amendment, the requirement that a neutral magistrate determine whether to issue a warrant is an important safeguard against unreasonable searches and seizures. Where that precaution is observed, substantial weight must be given to the commonsense judgment exercised by the judicial officer. United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); United States v. Travisano, 724 F.2d 341, 345 (2d Cir 1983); United States v. Zucco, 694 F.2d 44, 46 (2d Cir l982). *fn2"

 While the point is not necessary to my decision, I note that while movant argues that the seizure was not incident to an arrest, any expectation of privacy with respect to footwear worn when one enters custody is obviously attenuated; personal effects are often sequestered and consequently observed. See generally United States v. Stevenson, 803 F. Supp. 825 (SDNY 1992) and cases cited.

 Movant's original papers proceeded on the assumption that there was no search warrant; his reply papers concede that the officers seizing the sneakers told movant that they would leave the warrant with the jail officials. ...


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