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February 20, 2004.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


Having previously been convicted of a crime punishable by imprisonment exceeding one year, on February 27, 2003, the Government filed an indictment against Josue Bedell ("Bedell" or the "defendant") on one count of violating 18 U.S.C. ยง 922(g)(1) for possessing a firearm. Pending before the Court is a motion by Bedell to suppress a gun recovered from his room and to suppress statements allegedly made by him under custodial interrogation. In the alternative, the defendant requests a hearing to determine whether the physical evidence Page 2 and statements should be suppressed.


  Bedell alleges the following facts in support of the instant motion. The defendant states that he was a tenant in a room on the second floor of 83 Heston Road, Shirley, New York ("Heston Location"). The defendant claims that the Heston Location is a rooming house and that he was the sole tenant and occupant of his room. Bedell contends that his room was not a common area and that no other person had authority to enter or allow entry to the room.

  According to Bedell, on February 11, 2003, officers of the Suffolk County Police Department entered the Heston Location to arrest him on a charge of criminal contempt in the first degree under New York State law. He claims that the officers forcibly entered his room without knocking on his door or announcing their identity or purpose. The defendant states that he did not consent to their entry. Upon entering his room, the arresting officers recovered a .380 caliber semiautomatic pistol on the floor.

  After his arrest, the defendant states that he was taken to the 7th Precinct in Suffolk County. Bedell contends that he was never advised of his Miranda rights before being interrogated. In addition, the defendant contends that he never made the statements attributed to him.

  In its opposition papers, the Government alleges that on February 10, 2003, the defendant's girlfriend, Jamie Harris ("Harris"), filed a complaint against Bedell at the 7th Page 3 Precinct, alleging that earlier that day the defendant had assaulted her in violation of an Order of Protection issued on January 28, 2003, by the Honorable John Kelly, of the Suffolk District Court. On the next day, February 11, 2003, the Government states that Detectives John Clark and David Winter of the Suffolk County Police Department went to the Heston Location to arrest him for assaulting Harris and violating the Order of Protection.

  The Government alleges that Detective Clark had arrested the defendant at his home and was aware that the Heston Location was a rooming house and that the defendant was renting a room on the second floor. According to the Government, when the detectives arrived at the Heston Location, they knocked on the front door of the rooming house, at which time an individual residing at the Heston Location answered the door and gave the detectives permission to enter and look for the defendant. The Government alleges that the detectives went to the room in which they knew Bedell resided, and knocked on his door. The Government further alleges that Bedell opened the door to his room, at which point the detectives asked him to step out of his room, which he did.

  The Government states that the detectives placed handcuffs on the defendant and instructed him not to move. The Government further states that the barefoot defendant told the detectives he needed to get his boots from his room. The Government asserts that the detectives did not allow Bedell to get his boots, but shined a flashlight into the room to look for the defendant's shoes. According to the Government, the detectives observed, in plain Page 4 view, a handgun on the floor of the room near the defendant's shoes. The Government states that they discovered later that the gun was defaced. The Government contends that the detectives recovered the gun which was located approximately six to eight feet from the door. Thereafter, the defendant was transported to the 7th Precinct.

  The Government further contends that at the precinct, the defendant was orally advised of his Miranda warnings, and waived his right to remain silent. According to the Government, Bedell told the detectives, in substance, that the gun was not hidden because he was asleep before the detectives had arrived and that he needed the gun because people were after him.


 A. The Defendant's Motion to Suppress the Gun

  The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV. This amendment encompasses the common law requirement that a police officer entering a premise knock and announce his identity and purpose before forcible entry. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The "knock and announce" rule extends to police officers entering a tenant's room in a rooming house, as privacy expectations are high . . . even in private rooms." Anabile v. Pellegrino, 303 F.3d 107, 119 (2d Cir. 2001). Evidence seized Page 5 during a search may be suppressed if this rule is violated. See United States v. Burke, 517 F.2d 377, 386 n.13 (2d Cir. 1975). However, exceptions to this "knock and announce" rule exist "under circumstances presenting a threat of physical violence" or "where police officers have reason to believe that evidence would likely to be destroyed if advance notice were given." Id. at 936.

  An evidentiary hearing on a motion to suppress "ordinarily is required if the moving papers are sufficiently definite, specific, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question." United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (citations and quotations omitted). A defendant seeking to suppress evidence ...

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