execution of the search warrant. Affid. of Officer Murphy, attached to Exhs. 4 and 5, Govt.'s Response, Doc. 218. After a search of the apartment revealed that the subject of the search warrant was not in the apartment, Officer Murphy went to the automobile parked in the driveway area located near the apartment's rear entrance to determine whether defendant Lindsey may have "remained in the vehicle in hiding." Id. Without entering the vehicle, he looked through the windows to search for defendant Lindsey and observed a cocaine-like substance on the front floor. Id. Defendant Watson argues that this "search" of the vehicle was improper because it occurred after the search for defendant Lindsey ended, that is, upon the officers' determination that Lindsey was not inside the apartment. The court disagrees.
Contrary to defendant Watson's mere assertion that Officer Murphy approached the apartment building "after the warrant team concluded its search," Def. Watson's Mem. of Law, Doc. 201, at 12; Affid. of Frank J. Vavonese, attached to Def. Watson's Notice of Motion, Doc. 200, at 26, the evidence presently before the court amply demonstrates that Officer Murphy was present on the property as a member of the search warrant team at the time the search warrant was executed. Because the officers had authority to enter the property to search the apartment, it was reasonable for Officer Murphy to enter the rear driveway of the building in which the apartment was located in order to prevent the subject of the search from escaping through the apartment's rear entrance. The court concludes therefore that Officer Murphy was lawfully on the property, and in particular, on the driveway in the rear area of the apartment building where the automobile in issue was located. In addition, it was reasonable for Officer Murphy to examine the vehicle after learning that defendant Lindsey was not in the apartment. The decision to look into the car was reasonable in light of the activity observed around the vehicle just prior to the search of the apartment. In addition, as evidenced by the affidavit Officer Murphy submitted to obtain the search warrant for defendant Lindsey, the officer knew that the automobile had been loaned to Lindsey several days before the search.
Lastly, the court finds that the incriminating nature of the evidence was "immediately apparent" to Officer Murphy. The officer averred that he observed in plain view a clear plastic bag that appeared to contain crack cocaine. In addition, the court notes that defendant Watson does not allege in this motion papers that the nature of the evidence was not immediately apparent to the observer.
The court concludes that Officer Murphy's observations of contraband fell within the "plain view" exception to warrant requirement under the Fourth Amendment. The court therefore denies defendant Watson's motion to suppress the evidence, or in the alternative for a suppression hearing.
C. Defendant Chaney.
Defendant Chaney is charged, along with Defendant Raymond Cobb, in three counts of the indictment with conspiracy to possess narcotics, and possession of crack cocaine and methamphetamine, with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. Defendant Chaney moves the court for suppression of statements and physical evidence. Def. Chaney's Omnibus Motion, attached to Notice of Motion, ("Omnibus Motion") Doc. 210, at 7-9. On March 21, 1995, a warrant was issued for the search of a residence that defendant Chaney and defendant Cobb allegedly shared in Utica, New York. Defendant objects that neither the warrant nor the warrant application make any reference to her, or her alleged participation in criminal activity associated with the instant indictment. According to defendant Chaney, she was not even at the residence when it was searched.
Defendant Chaney first argues that the search, as applied to her, was unconstitutional because it was not issued upon probable cause that she was engaged in criminal activity, and the search warrant failed to "particularize the things to be seized with respect to her." Id. at 8-9 (emphasis in original). In particular, the search warrant application, the search warrant and the warrant return do not make any reference to defendant Chaney.
In short, defendant Chaney argues that there is "no reasonable nexus" between the allegations contained in the search warrant application, or the contraband found at the residence she allegedly occupied with defendant Cobb. Id. at 9.
Defendant Chaney also seeks suppression of certain statements that she allegedly made to police officers while being transported to the police station after her arrest on March 21, 1995. Id. at 7. Because her arrest was based upon evidence seized as a result of an illegal search warrant, defendant Chaney claims that the alleged statements must be suppressed as being the fruit of an illegal search. In addition, the alleged statements were made by Ms. Chaney in violation of her Sixth Amendment right to counsel, and without proper Miranda warnings. Id.
The government stated during oral argument that it consented to suppression of any statements made by defendant Chaney. The court therefore grants defendant Chaney's motion to suppress her statements made to law enforcement agents.
As to defendant Chaney's request for suppression of physical evidence, the court refuses to either suppress the evidence or grant a suppression hearing. First, Defendant Chaney's motion confuses the distinction between probable cause to arrest and probable cause to search. Probable cause to search is present when "there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought," and that there is probable cause to believe that the things sought are evidence of a crime. Zurcher v. Stanford Daily, 436 U.S. 547, 556, 56 L. Ed. 2d 525, 98 S. Ct. 1970, and n.4, 436 U.S. 547, 98 S. Ct. 1970, 1976-77, 56 L. Ed. 2d 525 (1978); see also Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983). Probable cause to arrest, in contrast, "requires information justifying a reasonable belief that a crime has been committed and a particular person committed it." 436 U.S. at 556, n.4; see also Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959) (probable cause to arrest exists "where 'the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."). In the case at bar, defendant Chaney's complaint that the warrant "did not issue upon probable cause with respect to her, " Omnibus Motion, Doc. 210, at 8-9 (emphasis in original), is appropriately characterized as a challenge as to whether there existed probable cause upon which to arrest, and is not a proper basis to challenge whether the search warrant was issued upon probable cause.
There also is no merit in defendant Chaney's argument that suppression of evidence is required because the search warrant, including the application, failed to particularize the items to be searched with "with respect to her." As stated above, probable cause to search a place requires that the issuing judge find that "a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S. Ct. at 2332. Furthermore, "if there is probable cause to believe that particular things are located on particular property, then it is not necessary that the owner of the property be suspected of crime." United States v. Ponce, 947 F.2d 646, 650 (2d Cir. 1991) (citing Zurcher, 436 U.S. at 556, 98 S. Ct. at 1976 ("valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found") (emphasis in original)). In summary, the validity of the search warrant at issue did not depend upon whether defendant Chaney herself was suspected of committing a crime.
The court therefore denies defendant Chaney's motion to suppress physical evidence.
XVIII. Motion to Consolidate
Defendant Miller moves the court for an order consolidating counts 16 and 18 of the second superseding indictment on the grounds that those counts are identical. Counts 16 and 18 read as follows:
On or about March 21, 1995, in the Northern District of New York, the defendant[s], Tommy Walker, Gary Miller, and Tracey Blackwell, aiding and abetting each other, knowingly and intentionally possessed with intent to distribute crack cocaine (cocaine base), a schedule II controlled substance.
In violation of Title, 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2.
October 19, 1995 Second Superseding Indictment, Doc. 94, at 16-17.
"Multiplicity" is the charging of a single offense in more than one count. "The multiplicity doctrine is based upon the double jeopardy clause of the Fifth Amendment, which assures that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." United States v. Fiore, 821 F.2d 127, 130 (2d Cir. 1987). In addition to the double jeopardy problem, the evil in charging a single offense in more than one count is that it may create the impression of more criminal activity on the part of the defendants than in fact may have occurred.
The government, which did not respond in its papers to defendant's request to consolidate, contended during oral argument that despite the identical language contained in counts 16 and 18, those counts are not multiplicitous because they charge the defendants with possession of contraband discovered in different locations. Although the language of counts 16 and 18 are identical, it may be premature for the court to order those counts consolidated in view of the government's contention that those counts pertain to separate incidents of possession. In this regard, the most appropriate course of action at this point is for the government to distinguish counts 16 and 18 through a bill of particulars. Therefore, the court orders the government to provide defendants Miller and Walker with a bill of particulars that is sufficient to enable the defendants to distinguish the conduct charged in counts 16 and 18 of the second superseding indictment. Defendant Miller's motion to consolidate the counts is denied without prejudice, to enable him to renew the motion if the bill of particulars does not sufficiently distinguish those counts.
XIX. Audibility Hearing
Defendants Lindsey and Watson seek suppression of, and an audibility hearing concerning certain tape recorded conversations. Tape recordings are admissible upon a showing of authenticity, accuracy, and relevance. United States v. Fuentes, 563 F.2d 527, 532 (2d Cir. 1977). In addition, a recording that is partially inaudible is generally admissible unless the unintelligible portions are so substantial as to render the entire recording untrustworthy. United States v. Arango-Correa, 851 F.2d 54, 58 (2d Cir. 1988).
Nevertheless, the United States consented during oral argument to an audibility hearing for these tape recorded conversations. Accordingly, defendants' motion for an audibility hearing is granted.
XX. Transcripts of Prior Proceedings and Trial
Defendants Lindsey, Cobb and Belgrove seek the transcripts of preliminary proceedings held in this court, in particular the detention hearings, and of recent state court criminal proceedings. With regard to state court proceedings, defendant Belgrove requests a transcript of certain witnesses who testified at Belgrove's recent criminal trial. Defendant Lindsey requests transcripts of police officer testimony at his recent murder trial.
Griffin v. Illinois 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) and its progeny establish the principle that as a matter of equal protection the state must provide indigent prisoners with the basic tools of an adequate defense on appeal when those tools are available for a price to other prisoners. In Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971), the Supreme Court, held that "the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal." In assessing an indigent defendant's claim of right to a free transcript, the Supreme Court in Britt identified two factors to the determination of need: (1) the value of the transcripts to the defendant's preparation for trial; and (2) the availability of alternative devices. Britt, 404 U.S. at 227, 92 S. Ct. at 433; see also Martin v. Rose, 525 F.2d 111, 113 (6th Cir. 1975). Noting the availability of adequate alternatives to a transcript, the Britt Court held that the State was not required, on the particular facts of that case, to provide a transcript to a defendant who was convicted after his previous trial ended in a mistrial.
In the case at bar, the court is faced with the somewhat novel issue of whether the government must provide an indigent defendant in federal court with free copy of transcripts from a prior state court trial. In addition, the court must determine whether defendants are entitled to copies of transcripts of preliminary proceedings held in this court.
With regard to the state court transcripts, the government agreed to provide defendants with copies of the requested transcripts of the state court proceedings. The government acknowledged during oral argument that there is a relationship between the evidence presented at the defendants' state trials and the government's legal theories in the instant case. The court therefore grants defendants' request for copies of the prior state court transcripts.
With regard to the request for the transcripts of preliminary hearings in the instant case, most of the reported cases pertaining to the subject deal with a state's obligation to provide an indigent defendant with copies of a transcript from a prior trial for the purposes of an appeal, or for the purposes of a defense when a prior trial was reversed on appeal or resulted in a mistrial. See Britt, 404 U.S. at 227, n.1, 92 S. Ct. at 433 n.1; see also United States v. Talbert, 706 F.2d 464 (4th Cir. 1983). Of particular relevance to the instant motion, in Roberts v. LaVallee, 389 U.S. 40, 43, 88 S. Ct. 194, 196, 19 L. Ed. 2d 41 (1967), the Supreme Court concluded that an indigent defendant was entitled to a free transcript of a preliminary hearing for the use at trial. In reaching that result, the Court reasoned that "differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Id., 389 U.S. at 42, 88 S. Ct. at 195-96 (citations omitted). Accord Fullan v. Commissioner of Corrections of State of New York, 891 F.2d 1007, 1010 (2d Cir. 1989) (quoting LaVallee, 389 U.S. at 42, 88 S. Ct. at 195-96).
Based upon the Supreme Court's holding in LaVallee, the court concludes that defendants, who are indigent, are entitled to a copy of the transcripts of preliminary proceedings in this court. LaVallee, 389 U.S. at 43, 88 S. Ct. at 196. However, the court notes that the preliminary proceedings at issue, held before Magistrate Judge Gustave J. DiBianco, were recorded on audiotape. A copy of those proceedings are normally available on audio cassette from the Clerk of the Court for a nominal fee. In that an audio cassette is an adequate alternative to a written transcription, the court grants defendants' requests for a free audio cassette recording of the preliminary hearings held in this court.
XXI. Leave to File Additional Motions
Lastly, each of the defendants request that they be allowed to make further motions within a reasonable time prior to trial if the government produces information or evidence that requires further motions or hearings. Given that the government has provided, or soon will provide each defendant with all the information it is required to provide up to this point in time, and that it acknowledges its continuing obligation to comply with Brady, it is difficult to imagine what further motions a defendant would need to make. Nevertheless, the court grants permission, upon good cause shown, to make further motions in advance of trial.
In summary, the court GRANTS defendants' motions for a bill of particulars to the following extent. The government must provide a single bill of particulars setting forth the following information. First, with regard to defendant Howard, the government must specify to the extent presently known, what types of narcotics were allegedly stored by defendant Howard, and the dates those narcotics were stored. Second, with regard to defendant Belgrove, the government must specify to the extent presently known, what types of narcotics were allegedly transported by defendant Belgrove, and the dates those narcotics were transported. Third, with regard to defendant Felton, the government must specify to the extent presently known, the dates that the he allegedly acted as a narcotics foreman and seller, and the types of narcotics that were involved in those transactions. Lastly, the government must specify to the extent presently known, what contraband defendants Walker and Miller are charged with possession of, under counts 16 and 18 of the indictment, sufficient to enable those defendants to distinguish the offenses charged under those counts.
Further, defendants' motions for disclosure of the identity of confidential informants that the government intends to call as witnesses at trial, and for exculpatory evidence and impeachment material are DENIED. Defendants' motions for disclosure of additional identification evidence are DENIED WITHOUT PREJUDICE. Defendants' motions for discovery of co-conspirators' statements are GRANTED, consistent with the court's opinion above. The court RESERVES until the time of trial its decision on defendants' requests for extra peremptory challenges. Defendants' motions for early disclosure of Jencks material and production of witness lists in advance of trial are DENIED. Defendants' motions for preservation of government agents' notes is GRANTED, and the government is hereby ordered to advise the appropriate law enforcement agents to retain rough notes. Defendants' motions for severance are DENIED. Defendants' motions for discovery of electronic monitoring evidence are DENIED WITHOUT PREJUDICE. Defendants' motions to dismiss the indictment and for disclosure of grand jury transcripts are DENIED. Defendants' request for a hearing to determine the admissibility of co-conspirators' statements is DENIED. Defendants' motions for discovery under FRCP 16, disclosure of any character evidence under FRCP 404(b), and disclosure of prior bad acts or convictions under FRE 609 are DENIED. Defendant Belgrove's motion for a suppression hearing is GRANTED. Defendant Watson's motions for suppression of evidence or, in the alternative, for a suppression hearing are DENIED. Defendant Chaney's motion to suppress certain statements is GRANTED. Her motions to suppress physical evidence or, in the alternative, for a suppression hearing are DENIED. Defendant Miller's motion to consolidate counts 16 and 18 of the indictment is DENIED WITHOUT PREJUDICE. Defendant Lindsey and Watson's motion for an audibility hearing is GRANTED. Defendants Lindsey, Cobb and Belgrove's motions for copies of transcripts of prior proceedings are GRANTED, consistent with the court's opinion above. Lastly, defendants' motions for leave to file additional motions are GRANTED, upon good cause shown.
It is so Ordered.
Dated: April 10, 1996
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE