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United States District Court, Southern District of New York

August 29, 2003


The opinion of the court was delivered by: Laura Taylor Swain, District Judge


Defendant Jeffrey McDaniel, charged in a one-count indictment with being a felon in possession of a firearm, seeks an order (i) suppressing any evidence seized in connection with the execution of a search warrant at Defendant's home; (ii) suppressing any statements made by Defendant to the police; (iii) suppressing any items seized from Defendant's person at the time of his arrest; (iv) directing the Government to disclose prior bad act evidence it may seek to introduce against Defendant; (v) directing the Government to provide all exculpatory evidence and impeachment material as it becomes available; and (vi) directing the Government to provide certain enumerated categories of discovery. For the reasons set forth below, Defendant's motion is granted in part and denied in part.


Defendant has proffered an affidavit in support of the instant motion. In addition, on August 11, 2003, the Court heard testimony from Sergeant Daniel Fraser, Officer Gilbert Pierre-Louis, Officer Anthony Zebrowski, and Lieutenant James O'Sullivan, all employed by the [ Page 2]

New York City Police Department. Defendant did not testify. After having heard and observed the demeanor of the witnesses, the Court finds that the following relevant facts were established by a preponderance of the evidence.

On April 2, 2003, Sergeant Daniel Fraser and an Assistant United States Attorney requested a warrant authorizing the search of 1452 Stickney Place, Defendant's home. The warrant application was supported by the affidavit of Sergeant Fraser. Fraser's affidavit was in turn based on the allegations of a confidential informant (the "CI"). As set forth in the affidavit, the CI told Sergeant Fraser that he had visited Defendant at 1452 Stickney Place (the "Premises") several times over the previous three months. (Fraser Aff., Ex. B to Def.'s Mot., ¶ 7(a). The CI described the Premises to the Sergeant, who corroborated the CI's description by visiting the Premises. (Id. ¶¶ 7(b), 8). Sergeant Fraser also confirmed Defendant's presence at the Premises through a search of New York State-maintained criminal records, which generated a photograph of Defendant and showed him resident at that address. (Id. ¶ 9. The criminal record search also revealed that Defendant had been convicted of criminal possession of marijuana in the fifth degree, criminal possession of a controlled substance in the seventh and third degrees, and criminal possession of a weapon in the third degree. (Id. ¶ 9).*fn1

According to the CI, Defendant showed the CI a .22 caliber handgun at the Premises, and told the CI that the handgun would be available at the Premises should the CI need to use the gun. (Id. ¶ 7(c). The CI also stated that the CI had observed crack cocaine and marijuana in the Premises within the past three months. (Id. ¶ 7(e). The CI had observed the [ Page 3]

firearm and marijuana in the Premises within the week from March 25, 2003 to April 1, 2003.*fn2

Additionally, the CI told the Sergeant that Defendant sold crack cocaine outside a laundromat approximately five blocks from the Premises. (Id. ¶ 7(f). A search of New York City Police Department records indicated that there had been at least 13 narcotics arrests at that laundromat within the previous year. (Id. ¶ 10). Sergeant Fraser also spoke with the CI for at least three hours about criminal activity in the neighborhood of the Premises. The CI's statements were consistent with information Sergeant Fraser had already received from other law enforcement officers and cooperating witnesses. (Id. at 3).

Magistrate Judge Eaton, of this Court, issued the search warrant for the Premises, authorizing the seizure of any handguns and various drug trafficking paraphernalia at the Premises. See Search Warrant, Ex. C to Def.'s Mot., Schedule A. Before noon on April 3, 2003, Sergeant Fraser and others drove to the Premises to execute the warrant. (Transcript of hearing ("Tr.") at 19-20). When no one answered their knock on the door of the Premises, Sergeant Fraser returned to the police station house, leaving Officer Gilbert Pierre-Louis and other officers behind to watch for Defendant. (Id. at 147-48).

Around noon, the officers positioned in front of the Premises radioed Officer Pierre-Louis that Defendant was leaving the Premises and entering a taxicab. (Id. at 148). Officer Pierre-Louis cut off the taxicab with his unmarked police car as the cab drove around the corner from the Premises. (Id.) Officer Pierre-Louis approached the cab on foot with his [ Page 4]

handgun drawn and ordered Defendant to step out of the vehicle. (Id. at 148-49). At least two other officers were on the scene as well; they handcuffed Defendant and patted him down. Officer Pierre-Louis also searched the backseat of the cab. (Id. at 149). Defendant was placed in the back seat of a marked police car operated by Officer Zebrowski. (Id. at 161). Officer Zebrowski drove Defendant to the front of the Premises, and remained in the police car with Defendant. (Id. at 162).

As he sat in the police car, Defendant expressed concern about the search that was then proceeding in his home, and asked about the safety of his dog. (Id. at 162-63). Officer Zebrowski informed Defendant that the police were "conducting a search warrant," and that "there is (sic) possibly drugs and guns in the apartment." (Id. at 163). Zebrowski then told Defendant that, "If there's something you want to tell me, I'm listening." (Id.). After at least a moment of silence, Defendant told Zebrowski that "there's a gun under my mother's bed." Id.) Zebrowski caught the attention of Sergeant Fraser and told him that Defendant "has got something to tell you." (Id. at 164). Fraser approached Defendant, who was still handcuffed in the back seat of Zebrowski's police car, and said "What's up?". (Id. at 21-22). Defendant repeated his statement that a gun was under his mother's bed. (Id.) Fraser went back inside the house and recovered a .22 caliber Calico semi-automatic weapon from underneath Defendant's mother's bed. (Id. at 22). Defendant was then taken to the station house.

At no time prior to arriving at the station house was Defendant given the Miranda warnings. At the station house, Defendant was placed in an interrogation room. (Id. at 23). Sergeant Fraser explained to Defendant why he was arrested and the charges against him. (Id. at 25). Sergeant Fraser and Lieutenant O'Sullivan then interviewed Defendant for approximately [ Page 5]

one hour concerning criminal activity in the neighborhood. (Id. at 26). Fraser showed Defendant pictures of suspects in an attempt to get any information Defendant may have had about them. (Id. at 25). After an hour, Defendant asked Fraser what was going to happen to his mother, who was a civilian employee of the police department. (Id. at 27).

Sergeant Fraser told Defendant that the police department's Internal Affairs Bureau would investigate his mother because the gun was found underneath her bed. (Id.) The Court credits the testimony of Fraser and O'Sullivan that they did not threaten Defendant that a failure to admit possession of the weapon would result in his mother being arrested and fired. The only evidence that Fraser and O'Sullivan threatened Defendant with the arrest and termination of his mother is the un-cross-examined assertion to that effect in Defendant's affidavit. See Def.'s Aff. ¶ 4.

Sergeant Fraser then told Defendant that, if the gun was his and if he wanted to make a statement, Fraser would ensure that the statement was given to Internal Affairs. (Tr. at 27). Defendant indicated that he wanted to make a statement, and Fraser administered Miranda warnings to him. (Id. at 28). The Miranda warnings were read to Defendant from a sheet of paper with the following six queries printed on it. A blank line was printed opposite each query, under the heading "Subject replied":

1. You have the right to remain silent and refuse to answer questions. Do you understand question 1?
2. Anything you do say may be used against you in a court of law. Do you understand question 2?
3. You have the right to consult an attorney before speaking to the police and have an attorney present during any questioning now or in the future. Do you understand question 3?
4. If you can not afford an attorney, one will be provided for you without cost. Do you understand question 4? [ Page 6]
5. If you do not have an attorney available, you have the right to remain silent, until you have had an opportunity to consult with one. Do you understand question 5?
6. Now that I have advised you of your rights, are you willing to answer questions?
(Government's Exhibit 1). Defendant was also given a copy of the Miranda form to fill out. In response to questions 1-5, Defendant both said "yes," and wrote "yes" in the space provided. (Id.; Tr. at 31-33). In response to question 6, Defendant first wrote "some" on the answer line, but when told by Fraser that his answer had to be yes or no, Defendant struck out "some" and wrote "yes." (Govt.'s Ex. 1; Tr. at 33).

The Miranda form included lines on which to write a statement. Those lines are crossed through, and "Refused" is written across them. See Govt.'s Ex. 1. Sergeant Fraser and Lieutenant O'Sullivan both testified that, although Defendant refused to give a written statement, he said that the weapon seized belonged to him and his brother, and had been purchased by them in California and brought to New York in the back of a U-Haul truck. (Tr. at 35; 183). They also both testified that Defendant told them that his brother kept the gun locked up in their mother's bedroom out of concern for Defendant's "hot temper." (Id. at 37; 183). After Defendant made this statement, Captain Shea entered the interrogation room, and Defendant repeated his statement to the Captain. (Id. at 109-10).


The Validity of the Search Warrant

Defendant challenges both the sufficiency and the accuracy of the information alleged in the Sergeant's affidavit in support of the search warrant application. The Court's [ Page 7]

review of Judge Eaton's probable cause determination begins with the proposition that the magistrate judge's finding of probable cause is entitled to "great deference." United States v. Smith, 9 F.3d 1007, 1112 (2d Cir.1993) (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983). Indeed, "a search based upon a magistrate's determination will be upheld by a reviewing court on less persuasive evidence than would have justified a police officer acting on his own," and a "magistrate's finding of probable cause is itself a substantial factor tending to uphold the validity of [a] warrant." U.S. v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983).

Where, as here, the probable cause determination was based in part on information supplied by a confidential informant, courts are to assess the information "by examining the `totality of the circumstances' bearing upon its reliability." Smith, 9 F.3d at 1012 (2d Cir. 1993). "The only questions for the Court are whether the [affiant's] reliance on that informant was reasonable, and whether the Magistrate was fully informed of all necessary facts when [he] made [his] finding of probable cause for the issuance of the search warrant." Id. at 1013 (internal quotation marks omitted).

A defendant is entitled to challenge the validity of a search warrant on the basis of the lack of veracity of the search warrant affidavit. U.S. v. Perez, 247 F. Supp.2d 459, 472 (S.D.N.Y. 2003). If a defendant makes a "`substantial preliminary showing' that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the judge's probable cause finding," the defendant is entitled to a Franks hearing to test the accuracy of the affiant's claims. United States v. Salameh, 152 F.3d 88, 113 (2d Cir.1998). See also Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

Defendant contends that the affidavit contained false information in that the [ Page 8]

affidavit refers to a .22 caliber "handgun," but a .22 caliber rifle was actually recovered at the Premises. Such a discrepancy is not relevant to the Court's review of Judge Eaton's probable cause finding, absent evidence that Sergeant Fraser deliberately falsified or recklessly included the handgun allegation in the affidavit, because the Court's inquiry is confined to the sufficiency of the affidavit. See Smith, 9 F.3d at 1012 (magistrate's task is to examine totality of circumstances "set forth in the affidavit before him") (quoting Gates, 462 U.S. at 238). Defendant has failed to make a "substantial preliminary showing" that Fraser presented the magistrate with any deliberately or recklessly false or misleading material; accordingly, the Court finds that a Franks hearing is unnecessary in this case.

The Court upholds Magistrate Judge Eaton's determination that probable cause existed to believe that drugs, drug paraphernalia and a firearm would be discovered at the Premises. The CI provided first-hand information about the presence of marijuana and crack cocaine and a firearm at the Premises, as well as information that Defendant was selling crack cocaine outside a local laundromat. This information was presented to Judge Eaton; Judge Eaton was also informed that the CI's information had been corroborated by the Sergeant's examination of the Premises, a criminal background check of Defendant, information regarding drug-related arrests at the laundromat, and information from other officers and cooperating witnesses. The Court finds that the Sergeant reasonably relied on the CI's information, and that Judge Eaton had sufficient facts on which to base his determination of probable cause. The Court therefore finds that the search warrant at issue is valid, and Defendant's motion is denied to the extent it seeks the suppression of evidence on the basis of the validity of the search warrant.

Defendant also contends that the warrant was obtained in violation of Rule 41 of [ Page 9]

the Federal Rules of Criminal Procedure because Sergeant Fraser, a member of the New York City Police Department, obtained the warrant from Magistrate Judge Eaton. Rule 41 provides that warrants may be issued at the request of a federal law enforcement officer or an attorney for the government. See Fed.R.Crim.P. 41(b). The Court credits Fraser's testimony that an Assistant United States Attorney appeared with Fraser before Judge Eaton to apply for the search warrant. Accordingly, the Court finds that the requirements of Rule 41 were satisfied.

Probable Cause for Arrest of Defendant and Seizure of Personal Items

Defendant seeks the suppression of any items seized when he was initially detained by Officer Pierre-Louis and others, on the basis that his detention constituted an arrest without probable cause. The Government contends that Defendant was not arrested until after the weapon was seized, and that Defendant's initial detention, although custodial, was a Terry stop (see Terry v. Ohio, 392 U.S. 1 (1968) and not an arrest. Alternatively, the Government asserts that it had sufficient probable cause to arrest Defendant at the time of the original seizure.

Under Terry and its progeny, a law enforcement officer may detain a person for investigative purposes "if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989). Such an investigative detention must be "as minimally intrusive as possible," in light of the duration, conditions, and circumstances of the detention. United States v. Tehrani, 49 F.3d 54, 59 (2d Cir.1995). The Court need not decide whether Defendant's initial detention was a Terry stop of reasonable scope and duration, however, because the Court finds that the detaining officers had probable cause to arrest Defendant.

Probable cause to arrest exists if police officers "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a [ Page 10]

person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983). The CI's information was reasonably trustworthy. That information, coupled with knowledge of Defendant's prior felony convictions, entitled the detaining officers to believe that Defendant had violated Title 18 of the United States Code, section 922(g)(1). Accordingly, the Court finds that Defendant's detention was supported by probable cause, and any personal items taken from Defendant could thus have been seized pursuant to a search incident to an arrest. Cf. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (upholding search that occurred before formal arrest as search incident to an arrest because police had probable cause to arrest the suspect prior to searching him). Defendant's motion is denied to the extent it seeks suppression of evidence on the basis of the legality of his detention.

Voluntariness of Defendant's Statements

Defendant seeks the suppression of statements made both before and after he was given Miranda warnings. The Court notes that there is no dispute that Defendant made all of his statements while in custody. The Government contends that Defendant's pre-Miranda statements were spontaneous ones, and that Defendant made his post-Miranda statements after voluntarily, knowingly, and intelligently waiving his Miranda rights.

Pre-Miranda Statement

Statements made during custodial interrogation are generally inadmissible unless a suspect has first been advised of his rights. The act of interrogation encompasses "express questioning or its functional equivalent." The standard for determining the admissibility of statements made by suspects prior to the issuance of a Miranda warning is whether the words or actions of the law enforcement agents `were reasonably likely to elicit an incriminating response.' [ Page 11]
United States v. Gelzer, 50 F.3d 1133, 1138 (2d Cir. 1995). The Court finds that Officer Zebrowski's statement to Defendant, "If there's something you want to tell me, I'm listening," was reasonably likely to elicit an incriminating response from Defendant in the context of their interaction following Defendant's detention.

Officer Zebrowski made the statement immediately after informing Defendant that the police were executing a search warrant inside Defendant's home and that there were "possibly guns and drugs in the apartment." (Tr. at 163). The Government contends that Defendant made his statement to Zebrowski in the course of a conversation that Defendant initiated. Courts have allowed police officers to ask follow-up or clarifying questions in response to statements volunteered by a suspect, without first having to administer Miranda warnings to the suspect. See Andersen v. Thieret, 903 F.2d 526, 531-32 (7th Cir. 1990) (citing United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985) (no interrogation occurred where drug dealer saw police officers were confiscating his notebook and said, "You can't take that," to which a police officer responded, "Why?" and drug dealer stated, "I can't run my business without that."); Turner v. Sullivan, 661 F. Supp. 535, 538 (E.D.N.Y.1987) (no interrogation occurred where habeas petitioner had initiated exchange by stating, "My leg is hurting," to which police officer responded, "What happened to you?"). Zebrowski's statement, however, was not a "neutral response" intended to clarify a "puzzling declaration" by McDaniel. Andersen, 903 F.2d at 532. Rather, in light of Zebrowski's description of the items sought in the search warrant, Zebrowski's statement was reasonably likely to elicit a statement from Defendant about the location of contraband, and thus Zebrowski should have administered Miranda warnings to Defendant before making the statement. Accordingly, Defendant's statement to Officer [ Page 12]

Zebrowski, "there is a Calico under my mother's bed," that was then repeated to Sergeant Fraser, cannot be introduced at trial.

Post-Miranda Statements

Defendant also seeks suppression of the statement Defendant made to Sergeant Fraser and Lieutenant O'Sullivan in the interrogation room. Defendant contends that the Miranda form given to and signed by Defendant presented the Miranda rights in such an ambiguous manner as to preclude a knowing and intelligent waiver by Defendant. In particular, Defendant argues that question six, "Now that I have advised you of your rights, are you willing to answer questions?", insufficiently apprised Defendant that he had the right to speak with an attorney present. Questions three through 5, however, sufficiently inform a suspect of his Fifth Amendment right to counsel to enable him to make a voluntary, knowing, and intelligent waiver of that right. Cf. Duckworth v. Eagan, 492 U.S. 195, 202-203 (1989) (Miranda warnings do not need to be given in form described in that decision; inquiry is whether warnings reasonably convey to a suspect his rights as required by Miranda). Accordingly, the Court finds that Defendant voluntarily, knowingly, and intelligently waived his Miranda rights before making his statements to Fraser and O'Sullivan about the possession and origin of the weapon, and Defendant's request to suppress those statements is denied.

Rule 404(b) Material Defendant requests that the Court direct the Government to disclose (presumably, immediately) evidence that may be proffered at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) provides, in pertinent part:

[e]vidence of other crimes, wrongs, or acts . . . may . . . be admissible . . . provided that upon request by the accused, the prosecution in a criminal case shall [ Page 13]
provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial.
Fed.R. EvId. 404(b).

What constitutes reasonable notice depends upon the circumstances of the particular case.See United States v. Kevin, No. 97 Cr. 763, 1999 WL 194749, at *13 (S.D.N.Y. April 7, 1999) (collecting cases). The purpose of the notice provision is "to reduce surprise and promote early resolution" of any challenge to admissibility of the proffered evidence. To ensure adequate time for the efficient pretrial consideration of any disputes concerning Rule 404(b) material, the Government is hereby directed to make its 404(b) disclosures and any related motions in limine no fewer than three weeks before trial. Any such motion practice by the defense shall be commenced as promptly as possible and in no event fewer than ten days prior to trial.

Brady and Giglio Material

Defendant requests that the Government produce as it becomes available all exculpatory and impeachment materials within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150, 154 (1972). Disclosure of Brady and Giglio material is governed by the same timing requirement. In re United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001). As a general rule, Brady does not require immediate disclosure of exculpatory evidence and impeachment material upon defendant's request. Id. at 146. "There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial." Id. at 144. In Coppa, the Second Circuit set the timing of Brady disclosures as follows: "[T]he prosecutor must disclose `material' (in the [ Page 14]

Agurs/Bagley sense) exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." Id. at 142. Accordingly, "as long as a defendant possesses Brady [and Giglio] evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." Coppa, 267 F.3d at 144.

The Government has represented in its response to the motion that it is not aware of any Brady material pertaining to Defendant, but that it will produce such material in a timely fashion if it becomes known. The Government's ultimate production of exculpatory material and impeachment evidence must be timed so as to enable Defendant to use the material effectively at trial. Defendant's request for an order requiring production of Brady and Giglio material as it becomes available is therefore denied.

Rule 16 Material and Other Discovery Requests

Defendant also requests an order directing the production of a variety of evidentiary material pursuant to Rule 16 of the Federal Rules of Criminal Procedure, including any documentation in the form of notes or reports concerning Defendant's detention and arrest and any statements made by Defendant. The Government has represented, both in its response to the motion and at the August 11th hearing, that it has produced all Rule 16 material that is in its possession and any documentation that exists concerning statements made by the Defendant. Therefore, to the extent that Defendant requests material within the scope of Rule 16, the request is denied as moot at this time. Otherwise, Defendant's requests fall outside the scope of Rule 16, and Defendant has supplied no alternative ground for requiring production of the requested materials. Accordingly, Defendant's discovery requests are denied. [ Page 15]


For the foregoing reasons, Defendant's motion is granted to the extent that Defendant's statement to Officer Zebrowski is hereby suppressed, and is denied in all other respects.


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