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UNITED STATES v. PECORARO

January 14, 1997

UNITED STATES OF AMERICA,
v.
MARTIN J. PECORARO, Defendant.



The opinion of the court was delivered by: HECKMAN

 CAROL E. HECKMAN

 UNITED STATES MAGISTRATE JUDGE

 Defendant is charged with multiple violations of the Federal Controlled Substances Act. Defendant moves to suppress evidence obtained as a result of a warrantless search of the defendant's home. For the reasons set forth below, this motion should be denied.

 BACKGROUND

 A suppression hearing was held on this motion on September 18, 1996. Two witnesses testified for the government and no witnesses testified for the defense. Following the hearing, the court directed the parties to submit briefing. Oral argument was heard on November 20, 1996. The decision was taken under advisement at that time.

 The first government witness was Special Agent Bruce Johnson. He testified that he went to the defendant's home in Amherst, New York to execute an arrest warrant on May 17, 1995. He and various other agents arrived at the residence at approximately 8:00 a.m. The defendant was in his bedroom upstairs sleeping. Agent Johnson as well as Agent O'Connell and Trooper White where led upstairs to defendant's bedroom by defendant's parents.

 The agents were dressed with their raid jackets identifying their various law enforcement agencies. Agent Johnson asked the defendant if he had any drugs. He said, "No." Then Agent Johnson asked the defendant if it was okay to search and he said, "Go ahead, there's nothing here." The defendant denied having any weapons, but stated that he did have money in the dresser. As Agent Johnson was questioning the defendant, Trooper White looked inside the dresser and said that the defendant had quite a lot of money in the dresser. Johnson explained to the defendant that he would seize it and that the defendant could take it up with the case agent when the case was processed. Trooper White also asked the defendant if the black Lexus in the driveway was his. He indicated that it was. The defendant gave permission to search the car and denied that he had weapons or money in the car. He also explained that the money in the dresser came from a 401k account.

 On cross examination, it was established that the bedroom was approximately 10' x 10' and had a number of people in it. It was very crowded when the consent was given. No Miranda rights were given in the bedroom, and the agents did not have a search warrant.

 Johnson's purpose in the initial round of questions was to protect the safety of the agents. Even if the defendant had refused their request to search the bedroom, Johnson testified that they would have searched the dresser because it was within the defendant's grabable area.

 The second witness to testify was Trooper Jeannie Marie White. She participated in the arrest in Amherst. She was in uniform and in a marked car. The defendant's mother took the agents to the bedroom where the defendant was sleeping. The defendant was sitting on the edge of the bed. The dresser was within reach of the defendant. Trooper White advised the defendant that the agents had an arrest warrant and he had to come with them. No Miranda warnings were given. Someone handed the defendant his clothes at the end of the bed. Agent Johnson asked the defendant if he had any drugs and he said no. Agent Johnson asked the defendant if he minded if the agents looked around the room and he said no. As soon as the defendant stated that it was okay to search the room, Trooper White looked into the dresser drawers and found a brown paper bag which contained a large amount of money. It was approximately $ 10,000. Meanwhile, Agent Johnson continued to question the defendant as to whether he had any weapons or money in the house. The defendant said that he took the money out of a 401k.

 Trooper White also found keys on the dresser. She asked if these were his car keys and he said they were. The defendant denied having anything illegal in the car. The defendant also gave permission to search the car. In the car, she found a small bottle of green vegetable matter believed to be marijuana and a glass pipe in the glove box. Defendant was in the car while it was being searched. The defendant was read his rights after he was placed in the trooper's car.

 As to the search of the dresser, Trooper White testified that she would have sought a search warrant if the defendant refused to give permission to search the room and ...


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