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U.S. v. LAKE

October 5, 2002

UNITED STATES OF AMERICA,
V.
LONNIE LAKE, ALPHONSE LAKE, AND SYLVESTER LAKE, DEFENDANTS.



The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge

  MEMORANDUM OF DECISION AND ORDER

This case involves charges of narcotics possession, narcotics distribution, and gun possession. Presently before the Court is a motion by Alphonse Lake ("Lake") to: (1) suppress physical evidence seized from his residence on January 7, 1999; (2) suppress a statement he made to the police on January 7, 1999; (3) dismiss counts two and seven of the superseding indictment; (4) suppress evidence seized from his residence on June 6, 2001; (5) sever the trial of count two from the trial of the remaining counts; (6) sever the trial of count seven from the trial of the remaining counts; and (7) sever his trial from that of his co-defendant Lonnie Lake ("Lonnie Lake" or a "defendant"). Following the submission of Lake's motion, Sylvester Lake ("Sylvester Lake" or a "defendant"), one of Lake's alleged co-conspirators, submitted a letter application in which he requests that the trial of counts three and four, the only counts in which he is named as a defendant, be severed from the trial of the remaining counts. Sylvester Lake adopts the severance arguments set forth in Lake's motion and asserts that they apply with equal force to the counts against him. The Government opposes the motions by Lake and Sylvester Lake.

In addition, at approximately the same time that Lake filed his motion papers, the Government filed two letter applications. The first application requested that the Court bifurcate the presentation of evidence and jury deliberations for counts six and seven of the superseding indictment. The second application requested that the Court take judicial notice of the fact that one ounce of cocaine is equal to 28.35 grams. Lake and Sylvester Lake oppose the Government's bifurcation request and consent to the Court taking judicial notice of the fact that one ounce of cocaine is equal to 28.35 grams.

I. BACKGROUND

On June 12, 2001, the Government filed an indictment against Lake and Lonnie Lake. On July 10, 2001, the Government filed a superseding seven-count indictment against Lake, Lonnie Lake, and Sylvester Lake. Count one of the superseding indictment alleges that on January 2, 1999, Lonnie Lake conspired with others to distribute and to possess with the intent to distribute a substance containing cocaine in the amount of 500 grams or more in violation of 21 U.S.C. § 841(a)(1). Count two alleges that on January 4, 1999, Lake and Lonnie Lake conspired with others to distribute a substance containing cocaine base in an amount of 50 grams or more in violation of 21 U.S.C. § 841(a)(1). Count three alleges that on April 5, 2001, Lonnie Lake and Sylvester Lake conspired with others to distribute and to possess with the intent to distribute a substance containing cocaine base in an amount of 5 grams or more in violation of 21 U.S.C. § 841(a)(1).

Count six alleges that on January 7, 1999, Lonnie Lake, having previously been convicted of a crime punishable by a term of imprisonment that exceeds one year, possessed a firearm in and affecting commerce in violation of 18 U.S.C. § 922(g)(1). The seventh count of the superseding indictment alleges that on January 7, 1999, Lake, having previously been convicted of a crime punishable by a term of imprisonment that exceeds one year, possessed a firearm in and affecting commerce in violation of 18 U.S.C. § 922(g)(1). Count eight alleges that on or about January 7, 1999, Lonnie Lake possessed a firearm in and affecting commerce in violation of 18 U.S.C. § 922(k).

II. DISCUSSION

A. The Motion to Suppress the Physical Evidence Seized from Lake's Residence and the Statement Made by Lake on January 7, 1999

Lake alleges the following facts in support of his motion to suppress the physical evidence seized from his residence and the statements he made on January 7, 1999. Lake states that on January 7, 1999, he was home alone with his infant child when Nassau County and City of Long Beach police officers entered without knocking or announcing their presence or purpose. Lake claims that the officers assaulted him and told him that they were looking for documents relating to his brother, Lonnie Lake. Lake states that he did not resist the officers and informed them that any paperwork was in another room. None of the officers showed Lake a warrant or left a copy of a warrant with him.

Lake further contends that several officers went into another room and returned with a gun. According to Lake, one of the officers punched him and demanded to know why he had not told them about the gun. Lake states that the Government contends that he then stated, "The gun is mine, my wife didn't know it was in the house. I got it in Far Rockaway." Lake asserts that he was not given his Miranda warnings before he made this statement. Lake explains that the evidence taken from his residence on January 7, 1999 includes a Davis .380 caliber semi-automatic pistol and documents.

Lake argues that the evidence seized from his residence on January 7, 1999 must be suppressed because the officers did not knock and announce their presence and purpose and failed to leave a copy of the warrant with him. Lake also argues that his statement regarding the gun must be suppressed because (1) the gun should be suppressed; and (2) the statement was the result of custodial interrogation, and he had not been given Miranda warnings.

In its opposition papers, the Government alleges that on January 7, 1999, the Honorable Daniel R. Palmieri, a Nassau County Court Judge, issued a search warrant for Lake's residence. The Government states that the warrant set forth in underlined and capital letters:

THIS COURT HEREBY SPECIFICALLY DETERMINES THAT ADEQUATE GROUNDS EXIST FOR AUTHORIZING ANY EXECUTING POLICE OFFICER TO ENTER THE PREMISES TO BE SEARCHED WITHOUT GIVING NOTICE OF HIS OR HER AUTHORITY AND PURPOSE.

The Government contends that the evidence seized from Lake's house on January 7, 1999 should not be suppressed because the police officers reasonably relied in good faith upon a "no-knock" search warrant issued by a neutral and detached judicial officer. The Government notes that Lake has never asserted that Judge Palmieri was not neutral and detached, or that the officers did not reasonably rely in good faith on the "no-knock" warrant. The Government also argues that assuming the officers failed to provide Lake with a copy of that warrant, such a failure would not provide a basis for suppression because the requirement that a copy of the warrant be provided does not apply where, as here, the officers conducting the search were exclusively state officers. In regard to Lake's statement, the Government asserts that the officers were not required to give Miranda warnings because Lake made the statement spontaneously and not in response to any question posed by the officers.

In his rebuttal memorandum, Lake argues, for the first time, that the officers' reliance on the "no-knock" warrant was not objectively reasonable because the affidavit supporting the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Lake further contends that the Court must either suppress his statement or conduct an evidentiary hearing because the Government does not contend that the officers failed to give him his Miranda warnings, and that the Government failed to submit an affidavit in support of its argument that his statement was spontaneous.

1. As to the physical evidence

"The exclusionary rule does not apply to evidence obtained by a police officer whose reliance on a search warrant issued was objectively reasonable, even though the warrant is ultimately found to be defective." United States v. Tisdale, 195 F.3d 70, 72 (2d Cir. 1999) (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984)). Further, regardless of the existence of exigent circumstances, if the police officers were entitled to rely on the no-knock provision of the warrant in good faith, the evidence obtained pursuant to the execution of the warrant will not be suppressed. See Tisdale, 195 F.3d at 73. The affidavit supporting the application for the search warrant describes the items sought — cocaine, marijuana, narcotics and marijuana transaction records, beeper and telephone answering machine messages, bank books and safe deposit keys — as objects that can be readily destroyed or disposed of, discarded or hidden. The affidavit further states that narcotics and marijuana dealers who are likely to possess large ...


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