The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Defendant Richard Nelson ("Nelson") was indicted for being a
felon in possession of two firearms, in violation of
18 U.S.C. § 922(g)(1), after a federal agent and other law enforcement
officers found two guns in his apartment. Nelson has filed a
Motion to Suppress Evidence pursuant to Fed.R. Crim. P. 12. For
the following reasons, his motion is denied.
On or about October 9, 2003, a special agent of the Drug
Enforcement Administration (the "DEA Agent") received information
from a confidential source that the first floor apartment at 1351
Noble Avenue, Bronx, New York (the "Apartment"), might contain
narcotics. Based on this information, the DEA Agent, a New York
City Police Department officer (the "NYPD Officer"), and other
law enforcement officers went to the Apartment. The woman who
answered the door, Gloria Madden ("Madden"), allowed the officers
to enter the Apartment while she retrieved her passport. Nelson
also lived at the Apartment and was present when the officers
Inside the Apartment, Madden agreed to let the officers search the Apartment, and she signed a consent-to-search form. To
ensure safety during the search, the NYPD Officer asked Nelson if
there was anything in the Apartment that could be harmful to the
officers. Nelson responded that he had a gun in a dresser in his
bedroom. After recovering that gun, the NYPD Officer asked if
there was anything else in the Apartment that could be harmful,
and Nelson told him about another gun in the same dresser, which
the NYPD Officer then recovered.
Nelson argues that neither he nor Madden gave the officers
permission to search the Apartment, and thus all evidence seized
from the Apartment should be suppressed.
To meet the burden of sufficient facts to require the
suppression of evidence, a defendant must present his claim
through an affidavit of an individual with personal knowledge of
the relevant facts. See United States v. Gillette,
383 F.2d 843, 848-49 (2d Cir. 1967); United States v. Viscioso,
711 F. Supp. 740, 745 (S.D.N.Y. 1989). The affidavit must show "that
disputed issues of material fact exist before an evidentiary
hearing is required." Viscioso, 711 F.Supp at 745 (citing
United States v. Caruso, 684 F. Supp. 84, 97 (S.D.N.Y. 1988)).
Thus, Nelson is not entitled to an evidentiary hearing unless he
offers an affidavit from an individual with personal knowledge of
the relevant facts demonstrating that disputed issues of material
fact exist. The affidavit filed by Nelson's attorney is insufficient to
trigger an evidentiary hearing. See Gillette, 383 F.2d at 848
(attorney's affidavit that does not allege personal knowledge of
the disputed facts is inadequate to warrant a suppression
In addition, the affidavit only contends that "[n]either Gloria
Madden nor [Nelson] gave the police permission or authority to
search [their] apartment." See Affidavit of Richard Nelson
dated July 8, 2004 ("Nelson Aff."). However, a search is
different from an entry, and the Fourth Amendment does not apply
to entry with the consent of an inhabitant. See Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990) (noting that the Fourth
Amendment prohibition against warrantless entry of a home "does
not apply . . . to situations in which voluntary consent has been
obtained . . . from the individual whose property is searched").
Because Madden signed a consent-to-search form and allowed the
officers entry to the Apartment, the evidence cannot be
suppressed on Fourth Amendment grounds.
Furthermore, the claims in defense counsel's affidavit that
officers threatened to arrest Madden if she did not sign a
consent-to-search are legally insufficient because defense
counsel has no personal knowledge of the facts of this case.
See Gillette, 383 F.2d at 848-89. As Nelson does not squarely controvert the consent given by
Madden to search the Apartment, his motion to suppress the
evidence seized from the Apartment is denied.
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