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United States v. Turner

June 28, 2006

UNITED STATES OF AMERICA,
v.
JEFFREY TURNER, DEFENDANT.



MEMORANDUM-DECISION AND ORDER

Presently before this Court is an omnibus motion by defendant Jeffrey Turner ("Defendant" or "Turner"). Omnibus Motion (Dkt. No. 23). On August 4, 2005, Turner was indicted for knowingly possessing a firearm after being convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Indictment (Dkt. No. 12). On October, 13, 2005, a superseding indictment was filed against Turner which added a second count for knowingly possessing ammunition after being convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Superseding Indictment (Dkt. No. 17). Turner now moves for several forms of relief including: (1) suppression of all evidence seized as a result of the search of Defendant's residence and all derivative evidence seized pursuant to that evidence; (2) suppression of all pre-trial identification evidence; (3) dismissal of the Indictment pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure; (4) discovery pursuant to Rule 12(b)(4) and Rule 16 of the Federal Rules of Criminal Procedure; (5) production of all Brady material; (6) production and early release of Jencks Act material; and (7) leave to file further motions. Omnibus Motion (Dkt. No. 23).

I. BACKGROUND

The Indictment against Defendant arises from events taking place on the morning of November 3, 2004. Officers of the Albany Police Department responded to 722 Central Avenue, Albany, New York, after receiving a report from Kejay Garland ("Garland") of being threatened with a handgun. Garland Statement (Dkt. No. 28) at Ex. A. Garland stated to police that he had gone to Defendant's apartment looking for Garland's former girlfriend, Jacquelyn Evenhouse ("Evenhouse"), after seeing her car parked outside. Id. After determining that Evenhouse was in Defendant's apartment and engaging in an argument with her in the doorway of the apartment, Garland reported that Defendant brandished a handgun. Id. Garland continued his argument with Evenhouse in his vehicle until Defendant again brandished a handgun. Id. Garland then left and called the Albany Police Department.

After calling the police, Garland returned to 722 Central Avenue. After police arrived, Garland identified Defendant from an alleyway outside Defendant's apartment as the individual who brandished a handgun. Identification Report (Dkt. No. 28) at Ex. C. Police then searched Defendant's apartment. While the Government has produced a written consent to search form allegedly signed by Defendant, see Consent Form (Dkt. No. 28) at Ex. D, Defendant asserts that he did not consent to the search, see Turner Aff. (Dkt. No. 23) at 8. The search of Defendant's apartment resulted in the police recovering, among other things, a box of Mag Tech .380 ammunition and one magazine loaded with ammunition. Property Report (Dkt. No. 28) at Ex. E.

The police then interviewed Michael Estes ("Estes"), the resident of the second floor apartment above Defendant. Estes stated that Defendant, who he knew as "Ha", had earlier on November 3, 2004, given him a black handgun to hide in a safe in Estes' apartment. Estes Statement (Dkt. No. 28) at Ex. J. Estes gave the police permission to search his apartment, which resulted in the location of a .380 caliber handgun in Estes' safe. Consent Form (Dkt. No. 28) at Ex. G; Property Report (Dkt. No. 28) at Ex. H. Estes identified the handgun as the one previously given to him by Defendant. Defendant was then arrested and taken into custody.

II. DISCUSSION

A. Suppression of Evidence Seized from Defendant's Residence

Defendant seeks an order suppressing all evidence seized in the November 3, 2004 search of his apartment, or in the alternative, an evidentiary hearing to determine the admissibility of such evidence. Omnibus Motion (Dkt. No. 23) at 6.

"A defendant does not have a right to a suppression hearing under all circumstances; instead, the defendant must show that disputed issues of material fact exist before an evidentiary hearing is required." United States v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y. 1989). "An evidentiary hearing . . . will be held 'only if the moving papers allege facts with sufficient definiteness, clarity and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved.'" United States v. Canty, 971 F. Supp. 687, 695 (N.D.N.Y. 1997) (McAvoy, C.J.) (quoting United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972)); see also United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969).

In its Response, the Government asserts that the November 3, 2004 search of Defendant's apartment was conducted pursuant to a signed consent to search given by Defendant. Gov't Response (Dkt. No. 28) at 8; Ex. D. No warrant was obtained by the Albany Police Department prior to the search. Id. at 14. In a signed affidavit dated April 5, 2006, Defendant directly contradicts the Government's assertion and states that he did not consent to the Albany Police Department search of his apartment and did not sign any paperwork until after he was under arrest and the search was complete. Turner Aff. (Dkt. No. 23) at 8. Both Turner and the Government concede that an evidentiary hearing is necessary to develop the material facts surrounding the search and ensure that the entry, search and seizure of evidence complied with the Fourth Amendment. Omnibus Motion (Dkt. No. 23) at 12; Gov't Response (Dkt. No. 28) at 14. Therefore, the Court orders that an evidentiary hearing be held on Wednesday, July 26, 2006 at 10:30A.M. at the James T. Foley Courthouse in Albany, New York.

B. Suppression of Pre-Trial Identification Evidence

Defendant moves to preclude the Government from use of any identification testimony by Garland due to taint in pre-trial identification procedure, or in the alternative, requests an evidentiary hearing pursuant to United States v. Wade, 388 U.S. 218 (1967). Omnibus Motion (Dkt. No. 23) at 7. Defendant asserts that Garland's identification of Defendant was a result of a police show-up that took place well over an hour after the alleged incident, and at a time when Defendant was in the custody of uniformed police officers. Id. Defendant contends that the police show-up was therefore impressively suggestive and should be suppressed. Id.

A criminal defendant has a due process right "not to be the object of suggestive police identification procedures that create a 'substantial likelihood of irreparable misidentification.'" Solomon v. Smith, 645 F.2d 1179, 1185 (2d Cir. 1981) (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)).

In determining the admissibility of a particular identification, the Court must consider whether (1) the procedure used was impermissibly suggestive and, if so, (2) whether the identification remains reliable based on the totality of the circumstances. Solomon, 645 F.2d at 1185. Reliability of the identification is analyzed by considering the factors outlined in Neil v. Biggers, 409 U.S. at 199-200. These factors are:

(1) the witness's opportunity to observe the criminal at the time of the crime, (2) the degree of the witness's attention at the time, (3) the accuracy of the witness's initial description of the criminal, (4) the certainty with which the witness first identified the suspect, and (5) the time lapse between the crime and the identification. Solomon, 645 F.2d at 1186. The Supreme Court has noted that the "practice of showing suspects singly to persons for the purpose ...


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