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U.S. v. DASH

June 7, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
LEON DASH, Defendant.



The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge

DECISION and ORDER

INTRODUCTION

Defendant Leon Dash ("defendant") is charged in a nine-count Superseding Indictment with violations of: 18 U.S.C. § 924(c)(1) (unlawful possession of a firearm in furtherance of a drug trafficking crime); 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (possession with intent to distribute more than 5 grams of cocaine base); 21 U.S.C. § 844(a) 21 U.S.C. § 844(a) (simple possession of at least 5 grams of cocaine base); 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (possession with intent to distribute marijuana); and 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (being a felon in possession of a weapon). (Doc. No. 15). By omnibus motion dated November 19, 2004, defendant moves, inter alia, to suppress: (1) tangible evidence seized on April 27, 2003, from a residence located at 242 Parkway Street, Rochester; (2) a photographic identification of defendant made on March 23, 2004; (3) statements made by defendant in the course of a police interrogation on April 27, 2003; and (4) statements made by defendant in the course of a police interrogation on March 27, 2004. (Doc. No. 25). On review of the parties' submissions, Magistrate Judge Marian Payson recommended by Report and Recommendation dated April 25, 2005, that: (1) defendant's motion to suppress the tangible evidence found at 242 Parkway Street on April 27, 2003 be denied; (2) defendant's motion to suppress the photographic identification made on March 23, 2004 be denied; (3) defendant's motion to suppress the statements made on April 27, 2003 be granted; and (4) defendant's motion to suppress statements made on March 27, 2004 be denied.*fn1 (Doc. No. 39). Defendant filed timely objections to Magistrate Payson's Report and Recommendation, claiming that the Magistrate erred in recommending the denial of his motions to suppress the evidence seized at 242 Parkway Street, the photographic identification made on March 23, 2004 and the statements made on March 27, 2004. (Doc. No. 40). For the reasons set forth below, I adopt Magistrate Payson's Report and Recommendation in its entirety, and: (1) defendant's motion to suppress the tangible evidence found at 242 Parkway Street on April 27, 2003 is denied; (2) defendant's motion to suppress the photographic identification made on March 23, 2004 is denied; (3) defendant's motion to suppress the statements made on April 27, 2003 is granted; and (4) defendant's motion to suppress statements made on March 27, 2004 is denied. BACKGROUND

  The facts relevant to defendant's motion are set forth in Judge Payson's April 25, 2005 Report and Recommendation. (Doc. No. 39). In summary, Magistrate Judge Payson conducted a suppression hearing on defendant's motions to suppress on January 3, January 27 and March 2, 2005, during which Both sides presented evidence concerning events which transpired in April 2003 and March 2004.*fn2

  April 27, 2003

  On April 27, 2003, Officer Naser Zenelovic of the Rochester Police Department ("RPD") arrived at a residence located at 242 Parkway Street, Rochester, Apartment 1, in response to a report that a woman was being held against her will by a man with a gun. (Tr. B 9-10). When he arrived, he found the alleged victim, Quiana Barton ("Barton") standing outside a neighboring residence. She informed him that the man inside the apartment was Leon Dash (the defendant) and that he was still in the apartment with the couple's infant child and the firearm, but that she was able to escape under the guise of getting juice for the child. (Tr. B 11). Officers secured the area around 242 Parkway Street, and called for the defendant to surrender. He stepped from the building and was apprehended by Officer Zenelovic, who pulled him off the porch and handcuffed him. (Tr. B 16). A subsequent search of defendant's person revealed $717 in cash. (Tr. B 21). Barton confirmed that the individual apprehended was Leon Dash. (Tr. B 16).

  Once defendant was secured, Officer Zenelovic asked Barton for her consent to search the apartment for guns. (Tr. B 17). Barton agreed and signed a "Consent to Search Form," which was witnessed by Officers Zenelovic and Santori. (Tr. B 17, See also Consent to Search Form, Government's Response In Opposition To Defendant's Omnibus Motion For Relief, Ex. 2 (Doc. No. 26)).

  Officer Zenelovic then proceeded to search Barton's apartment, which was the only apartment accessible through the front door of the building.*fn3 Throughout the search, Barton followed Officer Zenelovic through the apartment. She never objected to any portion of the search, and in fact, identified the door that led to the basement. (Tr. B 19-20). Once in the basement, Officer Zenelovic discovered two firearms, which were wrapped in handkerchiefs and glassine bags. (Tr. B 21, 36). He also recovered ammunition from upstairs in the apartment which did not match either gun found in the basement. (Tr. B 36).

  After the search was completed, Officer Zenelovic assisted Barton in preparing an affidavit, in which she identified one of the recovered guns as one she had seen defendant with on a previous occasion. (Tr. B 22, See also Consent to Search Form, Government's Response In Opposition To Defendant's Omnibus Motion For Relief, Ex. 1 (Doc. No. 26)).

  After his arrest, Defendant was transported to the Monroe County Public Safety Building where he was interrogated by RPD Investigator David Mace. When Investigator Mace first entered the interrogation room to interview defendant, he found him sleeping on the floor. (Tr. B 45). He woke defendant, permitted him to use the restroom and gave him a drink of water. (Tr. B 45). Investigator Mace then began to inquire about defendant's general background information. Defendant informed him that he had completed tenth grade and that he lived at 68 Earl Street, not 242 Parkway Street. (Tr. B 46, 60). Defendant also informed him that he was not currently under the influence of drugs, but that he had smoked marijuana earlier that day. (Tr. B 46). Investigator Mace noted this information on an RPD Miranda card, at which time he advised defendant of his Miranda rights. (Tr. B 47-48). March 23, 2004

  On the evening of March 23, 2004, RPD Investigator Thomas Donovan responded to a report of a man with a gun in the vicinity of 551 North Goodman Street. (Tr. A 9). Upon arrival at the scene, he was advised by other officers that a suspect known as "Moosey" had been observed with a firearm. Moosey fled once he saw the officers, and disposed of the gun during the ensuing foot chase. (Tr. A 9-10). Investigator Donovan was then informed that Moosey's real name was Leon Dash. (Tr. A 10).

  Later that evening, Investigator Donovan was able to retrieve defendant's physical description and biological information from the Morris computer system. (Tr. A 10, 23-25). From that information, Investigator Donovan compiled a photographic array containing defendant's photo and five other similar photos. (Tr. A 10, 23). Investigator Donovan then showed the array to Abdul Shaibi ("Shaibi"), a witness to the earlier events. (Tr. A 13). Shaibi identified defendant's photograph as "Moosey," whom he had seen with a gun earlier that evening. (Tr. 14, 28).

  Based on Shaibi's identification, RPD Officers Gourlay and Schoenl prepared a felony wanted package for defendant. (Tr. A 16). The "felony package" indicated that there was probable cause to arrest defendant and contained a crime report, the photograph identified by Shaibi, a felony information and paperwork for the court. (Tr. A 16-17).*fn4 Defendant's photograph and biological information were also placed ...


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