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June 18, 2004.


The opinion of the court was delivered by: WILLIAM PAULEY, District Judge


On December 23, 2003, a federal grand jury indicted defendant Edward Gandia ("Gandia") of one count of unlawful possession of a firearm, and on February 17, 2004, a superceding indictment was entered charging Gandia with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Currently before this Court is Gandia's motion to suppress a bullet seized from his apartment by New York City police officers, a handgun and ammunition recovered during the execution of a search warrant, and Gandia's statement to the arresting officers that the bullet was "fake". For the reasons set forth below, Gandia's motion is denied.


  On April 28, 2004, this Court heard testimony from Gandia, Wilbert Morales, a New York City Police Department ("NYPD") Sergeant, and Colin Lawton, an NYPD police officer. After evaluating the demeanor and credibility of the witnesses, and considering the exhibits, this Court makes the following findings of fact.

  On November 28, 2003 at approximately 8:20 p.m., Sergeant Morales was on patrol with Officer Lawton and NYPD Officer Perez,*fn1 when they received a radio call concerning a dispute at Gandia's residence, 381 East 151st Street. (Hearing Transcript, dated Apr. 28, 2004 ("Tr.") at 4-5, 50-51.) The officers were notified that the dispute between the building superintendent and a tenant involved a firearm. (Tr. at 5, 51.) The person suspected of possessing the firearm was described as a male Hispanic wearing a yellow jacket and gray pants. (Tr. at 5, 51.) When the officers arrived at the building, they observed the defendant, who matched the description of the firearm suspect, and the superintendent, Pablo Suarez. (Tr. at 5-6, 19-20, 52-53, 78, 91.) Gandia and Suarez were arguing and screaming at one another. (Tr. at 55, 85.)

  Officers Perez and Lawton approached Gandia, while Sergeant Lawton spoke with Suarez. (Tr. at 6-7, 20, 53-54, 84.) Officers Perez and Lawton frisked Gandia for weapons, but found none. (Tr. at 53, 84-85.) Gandia indicated to the officers that he had argued with Suarez, and, before the officers could question him about firearms, he volunteered that he did not have a gun. (Tr. at 53.) At the same time, Sergeant Morales spoke with Suarez, who indicated that while he was taking out the garbage, Gandia approached him and called him a "rat" for speaking negatively about him to the landlord. (Tr. at 6-7, 21, 57.) Suarez also told Sergeant Morales that during the dispute, Gandia began to pull an object from his waist area, which he believed was a gun. (Tr. at 7, 21, 45, 65.) Suarez stated that he ran into his apartment and that Gandia starting banging on his door, saying "something to the effect that I don't care if you call the cops, I'm still going to get you anyway." (Tr. at 7, 91.)

  After taking Suarez's statement, Sergeant Morales joined Officers Lawton and Perez, who were speaking with Gandia. (Tr. at 7.) Gandia stated that he lived alone in apartment number 16 on the third floor, and the officers asked him if they could go into his apartment to continue their conversation. (Tr. at 7-8, 15-16, 30, 54-55, 78-79, 85-86.) The officers testified that they wanted to discuss the dispute with Gandia in his apartment because it was raining and because they wanted to separate Suarez and Gandia. (Tr. at 8-9, 27-28, 54-55, 85.) Gandia consented, opened his apartment door with his key, and led the three officers in. (Tr. at 8-9, 29-30, 55-56, 85-86, 92-93.)

  The first room Gandia and the officers entered was a small kitchen. (Tr. at 9-10, 29, 56, 79.) The kitchen opened to the living room through an open door frame. (Tr. at 10-11, 30, 58, 80-81.) The bedroom similarly adjoined the living room through an open door frame. (Tr. at 14-15, 63.) Gandia began explaining his version of the dispute to the officers in the kitchen, near the door frame. (Tr. at 11.) While Gandia spoke, Sergeant Morales positioned himself just inside the living room near the door frame, with his back against the wall to watch both the kitchen and the living room and to look for other people inside the apartment.*fn2 (Tr. at 10-12, 31, 33, 40, 45.) Sergeant Morales noticed a bullet standing upright on the top shelf of a home entertainment center in the living room, approximately 18 to 23 feet away. (Tr. at 12, 34-35.) Sergeant Morales picked up the bullet, saw that it was stamped .45 caliber on the base, and placed it back on the console. (Tr. at 14, 44.) After examining the bullet, Sergeant Morales quickly looked into Gandia's bedroom to determine whether there was any safety threat, and returned to the living room. (Tr. at 14-15, 44-45, 63.)

  While Sergeant Morales was in the living room, Officer Lawton walked into the living room to make sure there was no one else in the apartment. (Tr. at 58.) Officer Lawton also saw the bullet standing on its base on top of a wood-grain console television approximately 10 feet from where he was standing. (Tr. at 34, 58-59, 69, 72-73, 76, 82-83.) Gandia corroborated the officers' testimony that there was a bullet*fn3 on top of the entertainment center. (Tr. at 82-83, 94.)

  Subsequently, Officer Lawton briefly peered into Gandia's bedroom to check for other persons in the apartment. (Tr. at 63, 69.) Both Sergeant Morales and Officer Lawton saw a poster on the wall depicting different types of ammunition. (Tr. at 14, 63.) Neither Sergeant Morales nor Officer Lawton opened any drawers or looked under any furniture when they checked the living room and bedroom. (Tr. at 16-17, 63, 76-77.)

  After he left the bedroom, Officer Lawton entered the kitchen and looked behind the sink where Gandia was standing to ensure that no firearm was within reach. (Tr. at 64.) Officer Lawton returned to the living room, and pointed out the bullet to Sergeant Morales. (Tr. at 64, 70.) Sergeant Morales then asked Gandia if the object on the television was a bullet, and Gandia replied that it was "fake". (Tr. at 12, 34-35, 64, 70-71, 87-88.)

  Sergeant Morales asked Gandia for permission to search his apartment, but Gandia refused. (Tr. at 15, 36.) Sergeant Morales also testified that he instructed everyone to leave the apartment (Tr. at 15, 17, 36), while Gandia testified that he asked the officers to leave. (Tr. at 87-88, 94.) Gandia further contends that he asked the officers, "[W]hat are you doing? You don't even have a search warrant. What are you searching my apartment for?" (Tr. at 87-88.) Gandia was arrested outside of the front door to his apartment. (Tr. at 15, 18, 36-37, 75.) The officers were in Gandia's apartment for approximately five minutes. (Tr. at 43.)


  Gandia's motion to suppress concerns whether the officers discovered the bullet in the living room pursuant to a lawful search. Gandia argues that the officers recovered the bullet during an unlawful search, and then used it to obtain a search warrant. On that basis, Gandia moves pursuant to the Fourth Amendment to suppress all physical property seized from his apartment, including the bullet, and a handgun and 160 rounds of ammunition found during execution of the search warrant. Additionally, Gandia seeks to suppress a statement he allegedly made to arresting officers that the bullet was ...

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