United States District Court, W.D. New York
June 7, 2005.
UNITED STATES OF AMERICA, Plaintiff,
LEON DASH, Defendant.
The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge
DECISION and ORDER
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
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
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 on RPD's "wanted board,"
so as to inform any officer who stopped defendant that he was
wanted. (Tr. A 17).
March 27, 2004
On March 27, 2004 defendant was arrested by RPD Officers Gus
Venosa and Edwin Morale in the vicinity of 1530 Norton Street in
the course of a traffic stop. (Tr. A 33, C 10-11). He was
transported to the Monroe County Public Safety Building, where he
was interrogated by Investigator Nicholas Mazzola. (Tr. A 33).
Investigator Mazzola advised defendant of his Miranda rights
after obtaining certain pedigree information, including whether
defendant could read and write. (Tr. A 34-37). When asked whether
he understood these rights, defendant acknowledged that he did.
(Tr. A 38). At no time during the interrogation did defendant
express that he did not understand his rights; nor did he ask to
speak with an attorney. (Tr. A 38-39).
Investigator Mazzola began the interview by asking defendant
questions designed to elicit a general understanding of
defendant's version of events. He then asked defendant to repeat
his statement while he took notes. (Tr. A 39). Once he completed
the written statement, he read the statement to defendant, and asked whether
it was accurate. Defendant acknowledged its accuracy and stated
that there was nothing further he wished to add. (Tr. A 39).
Nonetheless, defendant refused to sign the statement. (Tr. A 42,
STANDARD OF REVIEW
Pursuant to 29 U.S.C. § 636(b)(1), after the filing of a Report
and Recommendation, any party may serve and file written
objections to such proposed findings and recommendations. After
[a] judge of the court shall make a de novo
determination of those portions of the report or
specified proposed finding or recommendations to
which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.
28 U.S.C. § 636(b)(1).
I apply this standard to the following analysis.
The defendant asks this Court to modify or set aside Magistrate
Judge Payson's April 25, 2005 Report and Recommendation in so far
as she recommends that: (1) defendant's motion to suppress the
tangible evidence seized from 242 Parkway Street on April 27,
2003, be denied; (2) defendant's motion to suppress the photographic identification made on Mach 23, 2004, be denied; and
(3) defendant's motion to suppress the statements he made to the
police on March 27, 2004 be denied.*fn5
A. Defendant's Motion to Suppress Tangible Evidence Found at
242 Parkway Street
Defendant argues that the evidence seized from 242 Parkway
Street on April 27, 2003 should be suppressed because the police
exceeded their authority when they searched the basement of
Barton's apartment. Moreover, defendant alleges that Barton's
perceived compliance with the search of the basement may not
stand as proof of consent because she may have been intimidated
by the officers and merely acquiesced to their authority.
A warrantless search of an individual's home is constitutional
if conducted pursuant to the valid consent of that individual.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The government
has the burden of proving that consent was voluntary by a
preponderance of the evidence. Bumper v. North Carolina,
391 U.S. 543, 548-49 (1968), and "[t]he consent should be deemed
valid if, given the totality of the surrounding circumstances, the consent was
voluntarily given and not a result of duress or coercion."
United States v. Kon Yu-Leung, 9410 F.3d 33 (2d Cir. 1990).
Here, there is no question that Barton freely consented to the
search of her apartment since she signed an RPD Consent to Search
Form. See Consent to Search Form, Government's Response In
Opposition To Defendant's Omnibus Motion For Relief, Ex. 2 (Doc.
No. 26)). Defendant's assertion that she somehow limited the
scope of the search by consenting only to a search of the
apartment and not the basement has no basis in the record.
First, the terminology used by Officer Zenelovic in the Consent
to Search Form signed by Barton, specifically that the RPD may
"conduct a complete search of my home for any guns," is a clear
consent and is reasonably understood, under the plain meaning of
the words used, to contemplate a search of the entire premises,
rather than a search of the apartment only. See Consent to
Search Form, Government's Response In Opposition To Defendant's
Omnibus Motion For Relief, Ex. 2 (Doc. No. 26)).
Second, during the course of the search, Barton never attempted
to limit the scope of her search; nor did she indicate that she
felt constrained or in any way intimidated by the police
officers. In fact, on the reverse side of the Consent to Search
Form she acknowledged that, "[t]he permission is being given by
me to members of the Rochester Police Department voluntarily, and without fear, threats or promises of any kind." Consent to Search
Form, Government's Response In Opposition To Defendant's Omnibus
Motion For Relief, Ex. 2 (Doc. No. 26)). She followed the
officers throughout the apartment, and even assisted the officers
in the search, by indicating which door led to the basement. (Tr.
B. 19-20). At no point did she protest the search of the
basement. Third, there is no clear distinction between the
apartment and the basement from which one reasonably could infer
that the basement was not part of Barton's home. For example, the
only access to the basement is from a door located in Barton's
apartment and no other apartments in the building had access to
the basement. (Tr. B 19-20). As such, I find that the police did
not exceed their authority when they searched the basement of
Barton's apartment for guns.
B. Defendant's Motion to Suppress the Photographic
Defendant next argues that the photographic identification made
by Shaibi on March 23, 2004, should be suppressed because it was
unduly suggestive. Specifically, defendant argues that his
photograph stood out because only his photo had a full goatee,
while the other photographs had considerably less facial hair.
Defendant also contends that the positioning of defendant's photo
within the array was overly suggestive because "the eye is naturally drawn" to its location in the middle position of the
A witness's pre-trial identification of a defendant may be
excluded from evidence only where the procedure that produced the
identification is "so unduly suggestive and conducive to
irreparable mistaken identification that [the defendant] was
denied due process of law." United States v. Bautista,
23 F.3d 726, 729 (2d Cir. 1994) (quoting Stovall v. Denno,
388 U.S. 293, 302 (1988)). Nonetheless, "even a suggestive out-of-court
identification will be admissible if, when viewed in the totality
of the circumstances, it possesses sufficient indicia of
reliability." United States v. Mohammed, 27 F.3d 815, 821 (2d
Cir. 1994) (quoting United States v. Simmons, 923 F.2d 934, 950
(2d Cir. 1991)).
Here, Magistrate Judge Payson determined that the photographic
array used in obtaining Shaibi's identification of defendant was
not unduly suggestive, either in the differences in the amount of
facial hair between defendant and the others pictured, or in the
positioning of defendant's photograph. See Report and
Recommendation dated April 25, 2005, p. 17-18 (Doc. No. 39). I
First, as Magistrate Judge Payson pointed out, "the Due Process
Clause does not demand that all of the photographs in the array
be uniform with respect to a given characteristic." Report and
Recommendation dated April 25, 2005, p. 18 (Doc. No. 39) (citing Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir. 1986).
Although men pictured in the photographic array at issue had
various degrees of facial hair, at least three had goatees
similar to that worn by defendant. As such, there is nothing
within the array itself which would make defendant's photograph
stand out from the others, even if, as the defendant claims, the
witness was looking for someone with a goatee.
Second, there is no evidence to support defendant's assertion
that the location of his photograph made it more likely that he
would be identified by the witness. As such, I find this argument
to be insufficient to render the array unduly suggestive.
Moreover, even if the array was impermissibly suggestive, I
find that there exist sufficient indicia of reliability to allow
the identification to be introduced as evidence against
defendant. When reviewing the totality of the circumstances
surrounding a pretrial identification, the court should consider:
the opportunity of the witness to view the criminal
at the time of the crime, the witness' degree of
attention, the accuracy of the witness' prior
description of the criminal, the level of certainty
demonstrated by the witness at the confrontation and
the length of time between the crime and the
Neil v. Biggers, 409 U.S. 188
, 199 (1972).
Here, Shaibi had ample opportunity to view defendant, and when
first questioned by the police identified the man he saw with the
gun as "Moosey." (Tr. A 14). Investigator Donovan later learned
that "Moosey" was in fact Leon Dash. (Tr. A 10). Shaibi, when shown the set of pictures, did not hesitate when he pointed to
defendant's photograph and identified him as "Moosey," the man he
had seen with a gun in the vicinity of 551 North Goodman Street
earlier that evening. (Tr. A 14). The short lapse of time between
the time when Shaibi first reported the incident and his
identification made from the photographic array, some thirteen
hours later, further militates in favor of the identification's
reliability. Accordingly, I find that the total identification
process used contains sufficient indicia of reliability to render
the identification admissible.
C. Defendant's Motion to Suppress the Statements Made on
March 27, 2004
Lastly, defendant argues that the statements he made to the
police on March 27, 2004 should be suppressed because the
government is unable to prove that he knowingly and voluntarily
waived his Miranda rights.
Generally, statements made by a defendant while in custody in
response to police interrogation are inadmissible, unless the
defendant first was made aware of his Fifth Amendment privilege
against self-incrimination and then voluntarily waived that
privilege. Miranda v. Arizona, 384 U.S. 436, 444 (1966). It is
the government's responsibility to demonstrate that a defendant knowingly and intelligently waived his right against
self-incrimination. Id. at 475.
Here, the government argues that Investigator Mazzola duly
informed defendant of his Miranda rights, and that defendant
knowingly and voluntarily waived them. The evidence presented at
the suppression hearing demonstrates this to be credible, and
defendant has failed to produce any evidence that would lead to a
Investigator Mazzola testified that he began the interview by
engaging defendant in "small talk" in order to gather pedigree
information from defendant and to observe whether defendant may
have been under the influence of any drugs or alcohol. (Tr. A 36,
38, 50). He surmised that defendant was in fact sober, and
informed him of his Miranda rights by reading verbatim from an
RPD Miranda card. (Tr. A 38). Defendant then indicated that he
understood his rights and that he was willing to speak with
Investigator Mazzola. (Tr. A 38). At no time during the interview
did defendant indicate that he did not understand his rights; nor
did he request to speak with an attorney. (Tr. A 38-39).
Investigator Mazzola further testified that throughout the
interview, which lasted approximately forty-five minutes,
defendant seemed lucid and free of any physical ailment. Tr. A
To rebut this testimony, defendant argues that Investigator
Mazzola was unable to recall certain key aspects of the interrogation, including whether defendant was handcuffed while
he was questioned. However, I find that Investigator Mazzola's
testimony is sufficient to satisfy the government's burden.
For the reasons set forth above, I adopt Judge Payson's April
25, 2005 Report and Recommendation (Doc. No. 39) in its entirety.
Accordingly, defendant's motions to suppress (1) the tangible
evidence seized from 242 Parkway Street on April 27, 2003, (2)
the photographic identification made on March 23, 2004 and (3)
the statements made to police on March 27, 2004 are denied and
defendant's motion to suppress the statements made to police on
April 27, 2003 is granted.
ALL OF THE ABOVE IS SO ORDERED.