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UNITED STATES v. CASMENTO

March 27, 1998

UNITED STATES OF AMERICA against CLIFF CASMENTO and JOHN FALCONE, Defendants.


The opinion of the court was delivered by: MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Cliff Casmento, a convicted felon charged with possessing firearms in violation of 18 U.S.C. § 922(g)(1) (1994), has moved to suppress statements he made and guns seized from a basement to which he had access. He argues that the statements were made when he was in custody but before he had been warned of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and that the guns were seized during a search to which he had not validly consented. As set forth below, based on the evidence presented at a hearing on January 16 and 21, 1998, it appears that Casmento had no reason to believe that he was in custody at the time he made the statements in question, and that he validly consented to the search. Accordingly, the motions to suppress are denied.

 I.

 Two New York City detectives, a federal agent and Casmento's grandmother testified at the hearing. Their testimony showed that on August 18, 1997, Detective Robert Baumert was informed by a then-former girlfriend of Casmento that Casmento was a convicted felon who unlawfully possessed two hunting rifles. (Tr. 3, 31-32, 34-35) The detective verified Casmento's criminal record, and then arranged the following day for the former girlfriend to place a call to Casmento confirming his possession of the firearms, and to record the call. (Id.) During the call, Casmento stated that he had the weapons stored in the basement of the house where he was then residing. (Tr. 35) Baumert believed that Casmento posed a danger to the former girlfriend, and went immediately to the appliance store Casmento owned in order to arrest him. (Tr. 3-4)

 In addition to selling appliances from his store, Casmento also repaired beepers. When Baumert and another detective, named Ward, arrived at the store, the door was locked, but Baumert could see Casmento inside. He held up his beeper, and Casmento mouthed the word "problem"; Baumert confirmed that he had a problem with his beeper, and Casmento admitted him into the premises. (Tr. 6-7) Baumert acknowledged at the hearing that he intended to arrest Casmento at the time he entered the store; as he put it, "a custodial situation started from the time I entered the premises at 3:40." (Tr. 31)

 After Baumert and Ward had entered the store, Casmento went behind the counter. Baumert stood in the space between the counter and the wall, the space through which Casmento had walked in order to go behind the counter; Ward stood in front of the counter. Baumert's position was such that Casmento could not have walked out from behind the counter without encountering Baumert or asking the detective to stand aside. (Tr. 9-10)

 Once inside the store, Baumert told Casmento that he did not have a problem with his beeper but had come to discuss a problem of another kind. When he showed his police identification, Casmento asked whether it concerned his former girlfriend; Baumert responded that that was part of the problem, and asked Casmento whether he had any guns. When Casmento responded that he did not, Baumert asked specifically whether he had two hunting rifles; Casmento acknowledged that he did but suggested that he did not consider them "guns" (Tr. 7), perhaps because they were not handguns. Casmento conceded, in response to the detective's question, that he was a convicted felon, and Baumert told him it was unlawful for him to possess firearms of any kind. Casmento offered to give the guns to the detective, but Baumert said matters had gotten beyond that; Casmento had to be arrested. (Tr. 7-8)

 At that point, Baumert told Casmento that he was under arrest, and that Ward would read him the Miranda warnings. Casmento said he was aware of his Miranda rights, but Ward proceeded to read them anyway. (Tr. 8) Until that point, neither detective had displayed a weapon or touched Casmento. (Tr. 8-9) Thereafter, Casmento made two telephone calls, told one of his employees to call the florist and cancel an order of two dozen roses he was going to send to the former girlfriend who then appeared to be responsible for his predicament, turned over his cash and other personal effects to his employees, and gave Baumert permission to search his car. (Tr. 10-14) The detectives declined Casmento's request to leave his store without handcuffs so as to avoid being made a spectacle in front of his business neighbors, but they did accommodate him to the extent of moving their unmarked car as close to the entrance of the store as possible and taking Casmento out as unobtrusively as they could. (Tr. 14)

 During the ride to the precinct, Casmento again offered to give the officers the guns in the hope that they would "forget about it." (Tr. 16) Baumert explained that Casmento's former girlfriend had filed a complaint against him and the matter could not be disposed of so easily. (Id.) When they arrived in front of the precinct, Sergeant John Valdes approached the car where Casmento was still seated, and asked him if he had guns in his house and whether he would surrender them. Casmento said he had and would. (Tr. 16) A caravan of about four police vehicles headed for the house where Casmento was then residing, with Casmento providing instructions on how to get there. (Tr. 16)

 During the ride, Casmento asked whether Baumert could help him, and the detective replied that Casmento should be honest and cooperative, and that if he had information about other crimes he should provide it. The detective also offered to make any cooperation known to the United States Attorney's office, and to help Casmento to the extent he could. (Tr. 17)

 The house to which Casmento led the officers was a three-family dwelling, one apartment of which was then occupied by Casmento's grandmother, another by Casmento's mother and, after he split up with his former girlfriend, Casmento (Tr. 22, 68), and the third by an unrelated tenant. (Tr. 68, 70) Upon arrival, they entered Casmento's grandmother's apartment. When she appeared upset at the sight of her grandson in handcuffs, the officers removed them, and Baumert explained to the grandmother, Rose Zacco, that "Cliff was having some problems with his girlfriend Jennifer, and also we had a problem that Cliff was in possession of guns, that we needed to get them." (Tr. 18) Baumert filled out and proffered to Casmento a consent to search form, which Casmento appeared to sign. (Tr. 18-19; GX 1) After Casmento had affixed a signature to the form, his grandmother summoned a neighbor named Joe, apparently the occupant of the third apartment, and told him to open the door to the basement. (Tr. 21) Joe took a key from atop a door jamb, and Casmento, Valdes and Baumert entered the basement. Casmento showed the officers where the rifles were located, and volunteered that he also had bows and arrows and hunting knives. Baumert explained that there was no law prohibiting a convicted felon from possessing knives or bows and arrows, so there was no need to surrender those. Baumert took the rifles, and the three men went back to the grandmother's apartment. (Tr. 23-24)

 As the officers prepared to leave with Casmento, special agent Laurie Horne of the Bureau of Alcohol, Tobacco and Firearms noticed that Casmento had not signed his own name on the consent form but instead had written "Rose Casmento." Casmento explained that that was his mother's name. Baumert took the form, crossed out the name "Rose Casmento," and asked the defendant to sign his own name; Casmento refused. (Tr. 24-25) Horne then took the form and said she would go back inside and get the grandmother, Zacco, to sign it because Zacco had gotten the neighbor, Joe, to open the basement door. (Tr. 25)

 Horne and Zacco gave differing accounts of how Zacco's signature ultimately came to grace GX 1, the consent form. According to Horne, the ...


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