United States District Court, E.D. New York
January 19, 2005.
UNITED STATES OF AMERICA,
STEVEN RUSH Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This case involves one charge, pursuant to 18 U.S.C. §§ 922(g)(1) and
924(a)(2), of unlawful transport of a firearm after having been
previously convicted of a felony. Presently before the Court is a motion
by Steven Rush ("Defendant") to suppress a shotgun and ammunition that
Nassau County police officers found with the Defendant. The Defendant
alleges that the police officers did not have probable cause to search,
detain, or arrest him. In the alternative, the Defendant requests a
hearing to determine whether such items should be suppressed.
On May 8, 2004, at approximately 2:30 a.m., the Defendant was inside a
public building located at 174 Westbury Boulevard, Hempstead, New York.
According to the Defendant, police officers entered the premises with
guns drawn and ordered everyone inside the building to lie on the floor.
After ordering the Defendant to the floor, the police searched him and
recovered a 12 gauge Mossberg shotgun and shotgun shells from the floor
near the Defendant. The police officers then arrested the Defendant. It
is alleged by the Defendant that the officers who entered the premises
had no probable cause to: (1) believe that particularized criminal
activity was occurring at the premises; (2) restrain the liberty of the
individuals inside the premises; (3) search the Defendant; and (4) arrest
According to the Government, the police officers were legitimately
inside this public building when they observed the Defendant with a large
bulge down his side. As the officers watched the Defendant, they observed
him remove a shotgun and place it on the ground next to him. The officers
approached and recovered the shotgun from the ground where the Defendant
had placed it and then arrested him. The Government alleges that the
Defendant was not searched until after the recovery of the shotgun and
that the Defendant has no standing to challenge the recovery of the
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; Kyllo v. U.S., 533 U.S. 27, 31, 121 S. Ct. 2038, 2042,
150 L. Ed.2d 94 (2001). An individual challenging a search or seizure
must manifest a reasonable expectation of privacy in the location or item
searched. Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425-26,
58 L. Ed. 2d 387, 394-95 (1978); United States v. Osorio, 949 F.2d 38, 40
(2d Cir. 1991). The concept of a reasonable expectation of privacy, also
known as standing, requires that a defendant seeking to invoke the
exclusionary rule show that the alleged illegal conduct infringed on
personal constitutional rights. U.S. v. Fields, 113 F.3d 313, 320 (2d
A defendant has the burden of establishing standing by a preponderance
of the evidence. Osorio, 949 F.2d at 40. To have standing, it is not
enough that a defendant is "legitimately on the premises" where the
search occurs. Rakas, 439 U.S. at 142-43. "The test to determine whether
a person can claim Fourth Amendment protection in a given place depends
upon whether the person has a legitimate subjective expectation of privacy
in that area that society is prepared to accept as objectively
reasonable." United States v. Barrios-Moriera, 872 F.2d 12, 14 (2d Cir.
1989) (holding that there is no legitimate expectation of privacy in a
common hallway); see also California v. Greenwood, 486 U.S. 35,
108 S. Ct. 1625, 1628, 100 L. Ed. 2d 30 (1988) (holding that there is no
legitimate, subjective expectation of privacy in garbage put into plastic
bags and placed out on the curb); Katz v. United States, 389 U.S. 347, 361,
88 S. Ct. 507, 19, L. Ed. 2d 576 (1967) (Harlan, J., concurring). A
defendant lacks "standing" when the contact with the searched premises is
so attenuated that no expectation of privacy could be considered
reasonable. See Rakas, 439 U.S. at 137-38, 99 S. Ct. at 427-28. Thus,
"[o]ne's privacy interests receive much less protection in public
places." Caldarola v. County of Westchester, 343 F.3d 570, 575 (2d Cir.
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 a hearing on a suppression motion bears the
burden of showing the existence of disputed issues of material fact. See
id. at 338. However, a district court is not required to hold an
evidentiary hearing if the defendant's "moving papers did not state
sufficient facts which, if proven, would have required the granting of
the relief requested." United States v. Culotta, 413 F.2d 1343, 1349 (2d
Cir. 1969). Further, a court need not hold an evidentiary hearing when
the "defendant's statements are general, conclusory or based on
conjecture." U.S. v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y.
In this case there are no material disputed facts. Therefore, no
hearing is required. Both the Defendant and the Government allege that
the seizure occurred in a public place and that the shotgun was found on
the floor near the Defendant. The only statement that the Defendant
provides with regard to his connection to the location is his claim that
he was lawfully on the premises. The Defendant has not provided any facts
to allege that he had any privacy interest or contact with the premises
searched other than the fact that he was lawfully on the premises.
Accordingly, the Defendant's contact with the premises is insufficient to
create a reasonable expectation of privacy in the location searched.
Moreover, the Defendant admits that the shotgun and ammunition were
recovered from the floor and were not concealed. There is no reasonable
expectation of privacy in things visible to the naked eye. Florida v.
Riley, 488 U.S. 445, 450, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989);
California v. Ciraolo, 476 U.S. 207, 215, 106 S. Ct. 1809, 90 L. Ed. 2d 210
(1986). Items exposed to the public are not subject to Fourth Amendment
protection and may be seized by the police if there is cause to believe
that they may be evidence in a criminal context. Id.; Arizona v. Hicks,
480 U.S. 321, 326, 94 L. Ed. 2d 347, 107 S. Ct. 1149 (1987); Katz,
389 U.S. at 351; United States v. Gori, 230 F.3d 44, 50 (2d Cir. 2000).
Therefore, the Court finds that the seizure of the weapon and ammunition
from the floor was proper, and not subject to the protections of the
Based on the foregoing, it is hereby
ORDERED, that the Defendant's motion to suppress is DENIED in its
entirety without a hearing; and it is further
ORDERED, that the parties are directed to select a jury and proceed to
trial on February 14, 2005 at 9:30 a.m.
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