The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
This is the second opinion to deal with a motion by defendant Ibrahim A. El-Gabrowny to suppress documents seized from him at the time of his arrest on March 4, 1993. The first is reported at 825 F. Supp. 38 (S.D.N.Y. 1993).
As set forth below, because the evidence presented at a suppression hearing shows that the documents in question inevitably would have been discovered during an inventory search following El-Gabrowny's lawful arrest, the motion is denied. Further, because the facts established at the suppression hearing necessarily supersede the averments in the motion papers on which the earlier opinion was based, this opinion supersedes that earlier opinion.
Before the warrant was issued on March 4, 1993, a search through the debris at the World Trade Center explosion site had yielded pieces of the vehicle that had contained the bomb, including a piece that carried the alpha-numeric impression of part 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 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, and the fact of the 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 was the residence of El-Gabrowny and his family. The warrant authorized a search for explosives and related devices, among other things. (Kunstler/Kuby Aff. Ex. A)
The facts developed at the hearing begin with the agents' arrival in the vicinity of El-Gabrowny's apartment building. Detective Thomas Corrigan of the New York City Police Department and Special Agent Michael M. Burke of the Bureau of Alcohol, Tobacco and Firearms were the officers immediately involved in the challenged seizure; both testified at the hearing.
Both officers were in vehicles on the street outside El-Gabrowny's apartment building before agents entered that building to effect the search. (10/11 Tr. 5-7, 55) Corrigan was aware that the warrant included explosives or bomb components among the items to be sought in El-Gabrowny's apartment. (Id. at 6) Both officers heard a radio transmission from a surveillance unit stating that El-Gabrowny had left his building and was walking down the street. (Id. at 5-6, 55) Corrigan heard a radio transmission directing agents, presumably those on surveillance, to watch El-Gabrowny. (Id. at 27)
As the order was given for those who would execute the search to enter the building, and they began to do so, El-Gabrowny turned and started to walk back toward the building at an accelerated pace. His hands were thrust in the pockets of his jacket. Corrigan recalled hearing a radio transmission directing that El-Gabrowny be stopped, but in any event he had already decided to do that although, as El-Gabrowny notes, Corrigan accepted on cross-examination counsel's statement that at the time of the stop "you had no basis to believe that Mr. El-Gabrowny was committing or had just committed a crime." (Id. at 32, 33) Burke and Corrigan both came up behind El-Gabrowny, identified themselves as police officers, removed his hands from his pockets, and tried to place his hands against a wall so that the officers could frisk him. (Id. at 8-9, 57-58)
Both officers testified that El-Gabrowny resisted, removing his hands from the wall, demanding that the officers leave him alone, and the like. (Id.) Their recollections of the ensuing events differ, as follows. Corrigan testified that El-Gabrowny "made a motion towards the front of his jacket." (Id. at 9) Corrigan "didn't like that at all." (Id. at 9, 41) After El-Gabrowny's hands had been replaced on the wall, Corrigan started to frisk him and "felt in the inside breast pocket a rectangular object kind of firm about five or six inches in length and maybe three inches in width." (Id.)
El-Gabrowny suggested on cross-examination, and in his memorandum, that when the package in his pocket was touched, its feel should have dispelled any suspicion of plastic explosives because it was hard and lacked the "hard rubber" malleability or "give" of such explosives. (Id. at 15-16, Def. Mem. at 18-19) However, there would not appear to be much if any inconsistency between the "hard rubber" feel of plastic explosives and the firm feel of an envelope containing passports, wholly apart from the fact that a malleable substance may be contained within firmer packaging.
Burke's testimony differed from Corrigan's principally in that he recalled two frisks. Burke said he conducted the first one at the first location on the street where the agents stopped El-Gabrowny -- "a quick patdown to see what was in his pockets and around his waist area"; it disclosed nothing. (Id. at 79) Corrigan conducted the second frisk after El-Gabrowny had been moved to the second location closer to his apartment building; it disclosed the hard object in El-Gabrowny's breast pocket. (Id. at 58) Burke said that El-Gabrowny was moved to the second location because the first was "kind of a tight situation" and El-Gabrowny's resistance to being frisked posed a potential problem. (Id. at 57-58) According to Burke, it was during the second frisk, when Corrigan touched the object in El-Gabrowny's pocket, that the defendant swung backward and struck the officers with his arms and elbows (id. at 82-83), and was then subdued and handcuffed.
This differing recollection is minor in itself, and its significance diminishes still further when one considers that Corrigan testified he did not know whether Burke had patted El-Gabrowny's pockets (id. at 36), and that there had been no oral communication between the officers as to the reason for moving El-Gabrowny from the first location to the second, but only a gesture or a facial expression by Corrigan, and possibly a statement that he had found something (id. at 16, 43, 82). Thus, Corrigan does not contradict Burke's recollection that Burke conducted a brief pat-down at the first location, and ...