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February 28, 1996


The opinion of the court was delivered by: LARIMER

 Defendant, Sammie Wesley ("Wesley"), was indicted on September 6, 1995. The indictment contains two counts. Count I charges Wesley with knowingly making a false and fictitious written statement in connection with his purchase of a shotgun, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). The alleged false statement was Wesley's alleged representation on an ATF Form 4473 that he had not been convicted of a felony, when in fact he knew that he had. Count II charges defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

 There are two motions pending before the Court: (1) Wesley's motion to suppress physical evidence, namely, a shotgun seized from his automobile by the police on July 31, 1993; and (2) Wesley's motion to dismiss Count II of the indictment.


 The Court held a suppression hearing on December 6, 1995. The only witness who testified was Officer Michael C. Salway ("Salway") of the Rochester Police Department.

 Salway, who had been a patrol officer with the Department for four years and served with the Monroe County Sheriff's Department in the jail for eighteen months, testified that he responded to an emergency 911 telephone call and interviewed Deborah Davis ("Davis"). Davis told Officer Salway that the defendant had been pursuing her romantically for some time but that she had refused his overtures. On this particular day, he had apparently asked her for a date and when she refused Wesley became angry. She told Salway that Wesley went to his automobile and retrieved a "long gun" from the back seat. According to Davis, Wesley confronted her with the gun, pointed it at her and said "get in the car, bitch, or I will kill you." At that point, a neighbor, apparently alarmed by the shouting, came out of her house to take her child indoors. At the same time, Davis ran screaming from the scene. Davis described the automobile as a maroon Cadillac with a molded spare tire carrier on the trunk. At that point, Officer Salway radioed into the Department of Motor Vehicles and immediately determined that a maroon Cadillac was registered to Wesley. Salway testified that he knew Wesley to have a violent history and to be abusive. Wesley was an inmate at the Monroe County Jail when Salway was employed there as a deputy sheriff.

 Salway described Davis as very upset, frightened and shaking while she related her complaint to him. Salway talked to Davis about filing charges and she indicated that she would go to the police department the next day to file charges for menacing.

 Salway estimated that he talked with Davis for about ten minutes and, after he made sure that she was secure, proceeded to drive through the area in search of Wesley and the vehicle. After about five minutes, he observed defendant's vehicle parked on Harvest Street, which was only two or three blocks away from the point where Wesley confronted Davis. Salway radioed that he had located the car and eventually other officers arrived. The car was locked but Salway testified that he was able to look into the rear seat through the window at which time he observed what appeared to be a pistol-grip handle for a weapon. He then went to the other side of the car and saw what he observed to be a portion of the barrel as well. He had an instamatic camera and at some point took photographs of the back seat showing the condition of the weapon when he first observed it (Exs. 1, 2).

 At this point, he called a supervising officer and a decision was made to seize the vehicle and the weapon as evidence used in the commission of a crime. A decision was made to tow the vehicle. Rochester Police Department procedures required that an inventory be conducted of the vehicle's contents. The tow truck operator opened the car and Salway retrieved the weapon, which turned out to be a loaded 12-gauge shotgun.

 Salway conceded that there was discussion about obtaining a warrant, but he believed it was an "emergency situation" because they had discovered the vehicle soon after the confrontation between Wesley and Davis and because the officers did not know of Wesley's whereabouts, whether he had another weapon or whether he might be still pursuing Davis. Salway said that he was concerned about Davis' safety, the public safety and his own but was not specific as to what he thought might happen.

 Apparently the vehicle was released a few days later to Wesley because Salway saw it in the neighborhood. The decision to release the vehicle had been made without Salway's knowledge. The shotgun, obviously, was not returned to Wesley.

 Wesley was arrested without a warrant on September 21, 1993 for criminal possession of a weapon. Salway testified that he had difficulty locating Wesley. He had prepared a complaint but did not obtain a warrant until he had actually apprehended Wesley and taken him into custody.

 Salway testified that had he found Wesley with the car or seen him on the day of the incident, he would have detained him and arrested him.

 Salway checked with police headquarters prior to searching for the car to verify that Wesley did have a criminal record. Salway, of course, knew that Wesley had been incarcerated in the Monroe County Jail but did not know the nature or extent of Wesley's ...

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