The opinion of the court was delivered by: David G. Larimer United States District Judge
This Court referred all pretrial motions in this criminal case to United States Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. § 636. Four defendants, Carlos Torres ("Torres"), Jessie McIntyre ("McIntyre"), Frederick Rolle ("Rolle") and Onel Medina-Sosa ("Medina-Sosa"), were indicted for narcotics and firearms offenses. Since the return of the indictment, defendant Rolle pleaded guilty on May 10, 2006, and the Government had previously advised Magistrate Judge Payson that it intended to dismiss the indictment against McIntyre, although that apparently has not yet occurred.
Defendants Torres and Medina-Sosa have filed several motions. Torres seeks disclosure of the confidential informant. Medina-Sosa moves to suppress statements and both defendants move to suppress tangible physical evidence. By Decision and Order/Report and Recommendation, Magistrate Judge Payson denied the motion to disclose the confidential informant and recommended that both defendants' motions to suppress be denied.
Magistrate Judge Payson granted the defendants additional time within which to file objections. Defendant Medina-Sosa filed objections on April 24, 2006; defendant Torres filed objections on March 10 and May 2, 2006.
I have carefully reviewed Magistrate Judge Payson's lengthy, 38-page, Decision/ Report and Recommendation. I have also reviewed the objections filed by Torres and Medina-Sosa, and I also have the transcript of the suppression hearing and the Franks hearing.*fn1
For the reasons that follow, I affirm Magistrate Judge Payson's decision denying disclosure of the confidential informant, and I adopt her Report and Recommendation that both defendants' motions to suppress physical evidence and statements be denied.
Magistrate Judge Payson's Decision/Report and Recommendation goes into great detail concerning the procedures surrounding the application for the search warrant of 735 Parsells Avenue, Rochester, New York on April 20, 2005. The officers also obtained a search warrant for a 1994 Ford Bronco parked in the driveway of 735 Parsells Avenue.
Magistrate Judge Payson also discussed facts surrounding the statements made by Torres as well as matters elicited at the Franks hearing. I need not repeat here what Magistrate Judge Payson has set forth in great detail concerning the facts. I believe these facts, as set forth by Magistrate Judge Payson, are supported by the transcripts and materials submitted at the suppression hearing.
Defendant Torres seeks disclosure of the confidential informant who provided information for the search warrant. The Government opposed the motion on the grounds that such disclosure would endanger the informant. Informants need be disclosed if they are essential or material to the defense and without such disclosure defendant would be denied a fair trial. I agree with Magistrate Judge Payson that Torres has failed to show how disclosure of the informant's identity would be material to his defense. The informant was not a witness to the seizures and apparently did not make any controlled purchases from 735 Parsells Avenue or from Torres. Magistrate Judge Payson noted that there has been extensive discovery, in part because of the pretrial hearings in the case. There is little need to obtain the confidential informant's identity to obtain further discovery to defend the indictment.
In sum, Magistrate Judge Payson sets forth the facts and the law concerning the request for the identity of the confidential informant, and I agree with her assessment that disclosure is not required and, therefore, I affirm her decision denying disclosure.
SUPPRESSION OF EVIDENCE SEIZED FROM 735PARSELLS AVENUE
Defendant Torres moves to suppress evidence seized at 735 Parsells Avenue pursuant to a search warrant signed by City Court Judge Ellen Yacknin. Torres challenges the sufficiency of the affidavit submitted by Rochester Police Officer Robinson Aponte. Torres challenges the sufficiency of the affidavit, especially that part which relies on information from a confidential informant.
Magistrate Judge Payson disagreed with the defendant's contention, and I do as well. I believe that the affidavit was sufficient, that it did establish probable cause, and that there is no basis to suppress evidence. Magistrate Judge Payson described in some detail the contents of the affidavit, as well as Aponte's testimony at the suppression hearing. Magistrate Judge Payson determined that the affidavit was more than sufficient and then considered whether Aponte knew that the affidavit contained false information or recklessly disregarded the falsity. I believe the affidavit adequately described defendant Rolle's activities, and the fact Rolle started to make one statement and then abruptly changed his tack and began cooperating with law enforcement. I believe, as did Magistrate Judge Payson, that Aponte adequately explained why the first, very brief statement, which was essentially recanted by Rolle, ...