The opinion of the court was delivered by: DENISE COTE, District Judge
Defendant Nardino Colotti moves to suppress evidence seized
during the execution of a restraining order. For the following
reasons, the motion is denied.
Colotti was indicted on October 20, 2004 in a superseding
indictment for RICO and other violations of federal law. On
October 25, 2004, the Honorable Robert W. Sweet, acting as the Part I Judge, issued a post-indictment restraining order pursuant
to 18 U.S.C. § 1963(d)(1)(A) and 21 U.S.C. § 853(e) ("Order").
The Order included restraints on "the real property and
appurtenances known as 900 Morris Park Avenue, Bronx, New York,
including any gambling machines or gambling proceeds found
therein (the "Restaurant Premises")," and "the business known as
Mamma Maria Restaurant, currently located on the second floor at
900 Morris Park Avenue, Bronx, New York (identified supra as the
Restaurant Premises), and any and all assets thereof, including,
but not limited to, any and all personal property, moveable
appurtenances, and/or fixtures located at the said premises (the
"Restaurant Business")." (Emphasis supplied.)
The Order also permitted certain searches to be conducted and
an inventory to be taken. The Government's application requesting
the Order explained that some of the racketeering activity took
place at a Restaurant Business owned by Colotti, which was
located on the second floor of the Restaurant Premises, which it
defined as "the real property and appurtenances known as 900
Morris Park Avenue, Bronx, New York. . . ." The application also
indicated that a child care center was located on the first and
third floors of the Premises and a dance studio was also located
on the first floor.
The Order provided, inter alia, that law enforcement
officials "(I) may enter the . . . second floor of the Restaurant
Premises, . . . and the Restaurant Business; (ii) may padlock
and/or change the locks (to the extent necessary), . . . and otherwise secure the said premises pending execution of this
order, . . .; (ii) [sic] are authorized . . . to open in said
premises any doors, unlocked or locked, which may contain a room,
bathroom, and/or closet, so that a correct and accurate count of
the number of rooms, bathrooms and closets can be taken; (iv) are
authorized to inventory the assets of the Restaurant Business, by
conducting a thorough examination of the premises of the
Restaurant Business including authority to open all locked or
unlocked cabinets, drawers, closets, safes, and any other locked
or unlocked enclosure or container on the said premises within
which might reasonable be located an asset of the Restaurant
Business. . . ." (Emphasis supplied.)
During a search conducted pursuant to the Order on October 26,
law enforcement officials seized a black holster, a brown
holster, a wallet with identification of Joseph Gambino, and a
"stun gun type item" in a black case. These items were seized
from a storage room and office area that Colotti describes being
in the basement of the building at 900 Morris Park Avenue, and
that the Government admits was down a flight of stairs from the
Restaurant Premises. The Government explains that when the
officers entered the kitchen of the restaurant, they saw a door
leading to a flight of stairs, which led down to the office and
storage area. Colotti does not dispute that the office and
storage area were connected to the business of the restaurant
located on the second floor, but maintains that the storage room
was shared by two other independent business tenants of the building.
The sole issue that needs to be resolved is whether the
Restraining Order permitted the Government to enter a portion of
the Restaurant Business that was not on the second floor of the
building. Because the Restraining Order functioned essentially as
a search warrant, it should be interpreted as if it were one.
The guiding interpretive rule is that "[w]arrants must be read
in a `commonsense' fashion." United States v. Bianco,
998 F.2d 1112, 1117 (2d Cir. 1993) (citing United States v. Ventresca,
380 U.S. 102, 109 (1965)); see also Doe v. Groody,
361 F.3d 232, 239 (3d Cir. 2004) (noting that "a warrant should be
interpreted practically"). This practical, common-sense approach
to interpretation leads to two corollaries. First, a warrant's
specific terms should not be read "in a way that violates its
fundamental purposes." Groody, 361 F.3d at 239. Second, and
relatedly, "officers executing a search warrant are `not obliged
to interpret it narrowly.'" McClendon v. Story Sheriff's
Office, 403 F.3d 510, 517 (8th Cir. 2005) (quoting United
States v. Stiver, 9 F.3d 298, 302 (3d Cir. 1993)); see also
Hessel v. O'Hearn 977 F.2d 299, 302 (7th Cir. 1992) (explaining
that officers should not interpret warrants narrowly because
unnecessary items can be returned, while unseized evidence might
be destroyed and "[t]he prosecutor is in a better position to winnow the wheat from the chaff than the police are"). When
deciding whether to exclude the evidence, a court applies "an
objective test: would a reasonable officer have interpreted the
warrant to permit the search at issue." United States v.
Gorman, 104 F.3d 272, 274 (9th Cir. 1996).
Pursuant to the terms of the Order, law enforcement officials
were authorized to "enter . . . the Restaurant Business," which
had been described as "located on the second floor at 900 Morris
Park Avenue." Colotti maintains that this phrase limits the
permissible search area to only what is contained on the second
floor of the building. But an equally plausible reading of this
phrase is as a nonrestrictive descriptor, to identify for law
enforcement officials the target of their search, rather than to
define its precise geographical limits.
This alternate reading is clearly the most sensible in light of
the express purpose of the Order. The purpose of the Order,
explained on its face, was to allow law enforcement officials to
"inventory the assets of the Restaurant Business[ ] by conducting
a thorough examination of the premises of the Restaurant
Business." This purpose could not be achieved if the officers
were prohibited from accessing all parts of the restaurant,
including any that may spill over onto another floor. Colotti's
suggested reading would frustrate this objective.
Nor is Colotti's proposed interpretation made more plausible by
the inclusion in the Order of a more explicit spatial limitation. The Order provides that law enforcement officials
"may enter . . . the second floor of the `Restaurant Premises,'"
i.e., the building. But this provision is intended to prevent the
inadvertent disruption of the other business tenants of the
building. This objective is not materially advanced by
prohibiting the inventory of restaurant assets in spaces in a
common storage area, especially when the common area can be
accessed directly from the restaurant, without disturbing or
intruding upon any other tenants. Colotti's more restrictive
reading is precisely the kind of "hypertechnical and narrow
reading of the warrant language" that courts routinely reject.
United States v. Vesikuru, 314 F.3d 1116, 1123 (9th Cir. 2002);
see also United States v. Ortega-Jimenez, 232 F.3d 1325, 1328
(10th Cir. 2000) (applying "a standard of practical accuracy
rather than technical precision" (citation omitted)).
Even assuming, arguendo, that Colotti's reading of the Order
were the best possible interpretation, he would nonetheless not
be entitled to the relief he seeks. In United States v. 500
Delaware Street, 113 F.3d 310, 313 (2d Cir. 1997), the Second
Circuit considered a similar challenge to the search of an attic
"not within the apartment but in a hallway in common use by
occupants" of both apartments in a building when the warrant
provided solely for the search of one apartment. The Court of
Appeals upheld the search because "an officer armed with this
search warrant would reasonably ascertain that the attic was
included in the area intended to be searched." Id.; see also United States v. Heldt, 668 F.2d 1238, 1263 (D.C. Cir. ...