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United States District Court, S.D. New York

October 3, 2005.

ALEX RUDAJ, et al., Defendants.

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. 1981) (explaining that the relevant "question is whether or not [the area searched] could reasonably have been viewed by the searching agents as constituting part of" the area described in the warrant).

  The same conclusion is appropriate here. The officers' search of the basement was eminently reasonable given that the Order permitted the officers to open all doors within the restaurant and to inventory its assets. See United States v. Ferreras, 192 F.3d 5, 10-11 (1st Cir. 1999) (upholding search of third-floor attic even thought warrant specified that search was permitted on the second floor of the building); United States v. Vaughan, 875 F. Supp. 36, 44 (D. Mass. 1995) (noting that "case law supports the conclusion that the search of a basement or attic connected to an apartment in a multi-unit building is permissible under warrants limited to the apartment").

  Finally, Colotti's own characterization of the storage space undermines his argument that the Government acted improperly in its search. Colotti informed the court that the storage area "was a common area, accessible to all" of the tenants in the building. Yet "it is the established law of this Circuit that the common [areas] of multi-tenant buildings are not within an individual tenant's zone of privacy" even if they are not "accessible to the public at large." United States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985). Without a recognized privacy interest in the common basement, Colotti cannot "claim the protection of the Fourth Amendment" to challenge the propriety of the search and seizure of evidence from this area. Minnesota v. Garner, 525 U.S. 83, 88 (1998); see also United States v. Garner, 338 F.3d 78, 80 (1st Cir. 2003) (rejecting the argument that police exceeded the scope of a search warrant because defendant lacked a privacy interest in the common basement of his building). This is true even when the police presence in the common area results from trespass. See United States v. Fields, 113 F.3d 313, 322 (2d Cir. 1997) (holding that police observations made while trespassing did not violate the Fourth Amendment because defendant had no expectation of privacy with respect to activities visible from a common area).


  The Order authorizes the search of a restaurant for the express purpose of making an inventory of its assets. A commonsense, practical reading of this Order, consistent with its purpose, would allow the searching officers to enter a storage room directly connected to the restaurant, even if the restaurant is described as being located on the second floor, and the storage room is on another floor of the building. This is in fact the interpretation adopted by the officers who entered the restaurant pursuant to the Order, and that interpretation was not unreasonable. Moreover, to the extent that the storage room was a common area of a multi-tenant building, as Colotti maintains, Colotti did not have a reasonable expectation of privacy in that room. He is therefore unable to claim the protections of the Fourth Amendment with respect to a search conducted there. For these reasons, exclusion of the evidence seized from the storage room would be improper and Colotti's motion to suppress is denied.



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