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