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UNITED STATES v. TRZASKA

October 21, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD TRZASKA, Defendant.



The opinion of the court was delivered by: EDWARD R. KORMAN

 Korman, J.

 Because the first, warrantless search was nonconsensual and not subject to any exception to the warrant requirement, defendant's motion with respect to that search is granted. The search warrant, however, even when parsed of the evidence seized from the illegal search, is supported by probable cause. Accordingly, defendant's motion is denied with respect to the evidence seized pursuant to the warrant.

 BACKGROUND

 After serving approximately one third of a twenty year sentence, following his conviction in 1983 for unlawful receipt of firearms, defendant was paroled in February 1990 to the supervision of the Probation Department of the Eastern District of New York. This was the second time the defendant had been paroled since the initial sentence was imposed in 1983. After violating the conditions of his first parole term by possessing twelve rifles and seven shotguns, the defendant was incarcerated until his release in 1990.

 In May 1993, Probation Officer Kelley O'Keefe, who was supervising the defendant while he was on parole, received information from a confidential source ("CS") that the defendant was receiving a large volume of printed materials, magazines and mail-order catalogues from vendors that specialized in firearms and ammunition. In addition, the CS reported that defendant was receiving United Parcel Service ("UPS") shipments from a "Natchez Shooters Supply Company" located in Chattanooga, Tennessee. After inquiring with that company, Officer O'Keefe and agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") obtained invoices from shipments made to an "Ed's Sporting Goods" located at the same address as defendant's apartment on 118-17 15th Avenue in College Point, Queens. The invoices recorded the purchase of accessories for weapons and materials used to make "reloads," or ammunition reassembled from spent shell casings.

 Based upon this information, Officer O'Keefe and the ATF officers undertook an examination of UPS shipping records that documented deliveries to defendant's apartment. Their investigation revealed that the defendant was receiving shipments from seventeen other weaponry supply stores. Invoices from several of these establishments reflected additional purchases of accessories for weapons and the materials necessary to manufacture ammunition. The shipments were made predominantly from February 1992 through June 1993. The defendant had also twice ordered similar supplies in the first few weeks of September 1993.

 On September 25, 1993, Officer O'Keefe went to defendant's apartment to conduct a "routine home contact." Tr. of Supp'n Hr'g, Dec. 10 and Dec. 15, 1993 ("Tr.") at 16. According to her, although she was aware that defendant had received shipments from weaponry supply stores, she "sincerely did not believe that anything Mr. Trzaska might have been delivered would have been out in plain view." Tr. at 30. Thus, her visit was not intended to be a search, but just a "routine home contact" for the purpose of verifying defendant's residence. Tr. at 30-31. Officer O'Keefe was accompanied by Officer Eileen Kelly.

 After speaking with the defendant briefly in the hallway outside his apartment, Officer O'Keefe asked the defendant whether the officers could come inside. See Tr. at 17. Trzaska acquiesced, and allowed the officers into the doorway of his one-room apartment. Officer O'Keefe then saw the defendant's son inside the apartment, and heard the voice of a woman from behind a partitioned area. See Tr. at 18-19.

 Approximately one hour later, O'Keefe and Kelly returned to the apartment accompanied by four New York City Police Officers, who were brought along "for backup." Tr. at 19. Officer O'Keefe described what transpired as follows:

 
We rang the bell. Mr. Trzaska opened the door. He -- there was a police officer in front of me, and he [Trzaska] said, what's this, what's going on, something to that effect.
 
I explained to him that I had observed bullets in a jar under his table and that I was there to seize that contraband, as well as the bullets that Officer Kelly had observed on top of some shelf to the right, and that we were going to look around his apartment and anything else that was in plain view we were also going to seize.

 Tr. at 82. According to Officer O'Keefe, the defendant then said nothing, turned around, and walked up the stairs to his apartment. See Tr. at 21.

 While the defendant's girlfriend and son were escorted outside the apartment by the police officers, Officers O'Keefe and Kelly then proceeded to conduct what they termed a "plain view search" of the premises. See Tr. at 125. That is, instead of "opening drawers, looking under things, pushing up ceiling tiles, looking in cabinets and closets and refrigerators," the officers "merely stood in the middle of the room and looked, and everything that was in plain view that was considered contraband was seized." Tr. at 82-83. As a result of this search, a rifle, over 40 boxes and containers of ammunition, empty shell casings, and materials and instruments used to make ammunition, were seized. Officer O'Keefe then asked the defendant for his permission to conduct a more thorough search. The defendant refused to consent and the Probation Officers left without conducting a more intensive search.

 After returning to her office to inventory the seized contraband, Officer O'Keefe contacted a neighbor of the defendant's and inquired whether the defendant was visible "taking anything out of his apartment." Tr. at 26. She was then informed that the defendant could be seen removing several bags and a box from his apartment, and placing them into a green Cadillac El Dorado. Id. Officer O'Keefe next queried the neighbor whether the defendant was unloading the materials into a garage that O'Keefe was aware the defendant was renting, at 22-01 119th Street in College Point. Id. When the neighbor later called back to reply in the affirmative, Officer O'Keefe and her colleagues rushed ...


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