The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Defendant Anthony White ("White") is charged in a single-count Indictment with unlawful possession of a firearm and ammunition by a person having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On January 25, 2006, the defendant filed an omnibus motion seeking, inter alia, suppression of evidence seized from his residence at 494 Seward Avenue in the City of Rochester, New York, and suppression of statements made following his arrest. White contends that the police officer, who searched his home, did not have consent to search the bedroom in which he was found holding a shotgun, and therefore the search and seizure was unlawful.
By Order dated April 27, 2006, this case was referred to Magistrate Judge Marian W. Payson for pretrial proceedings. Pursuant to that Order, and after holding a hearing on defendant's motion, Judge Payson issued a Report and Recommendation dated May 8, 2006, recommending that defendant's motion to suppress be denied. Specifically, Judge Payson determined that search of White's home had been consensual, and therefore the search was lawful. White objects to Judge Payson's Report and Recommendation on grounds that he did not knowingly consent to a search of his bedroom because the police did not identify themselves when they knocked on the closed door to White's bedroom For the reasons set forth below, I affirm and adopt Judge Payson's Report and Recommendation in its entirety, and deny defendant's motions to suppress.
Pursuant to 28 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 such filing, [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.
A district court, however, may not reject the credibility findings of a Magistrate Judge without conducting an evidentiary hearing in which the district court has the opportunity to observe and evaluate witness credibility in the first instance. Cullen v. United States, 194 F.3d 401 (2nd Cir. 1999). I apply these standards to the following analysis.
The relevant facts of this case were set forth in Judge Payson's Report and Recommendation, and familiarity with those facts is presumed. In summary, on June 10, 2005, City of Rochester Police Officer Francis Archetko responded to a report of "family trouble" at 494 Seward Avenue in the City of Rochester. When he arrived at that location, he encountered a woman named Kathryn Mobley standing in the driveway of the home. In speaking with Ms. Mobley, Officer Archetko ascertained that Mobley's boyfriend Anthony White was in the home, that both she and White resided there, and that while Ms. Mobley did not want White arrested, she wanted Officer Archetko to ask White to leave the premises. Ms. Mobley allowed Archetko into the home, and told him in which room he could find White. Officer Archetko approached the room as directed by Ms. Mobley, and found the door to the room closed.
Officer Archetko knocked on the door to the room, and a male voice responded "come in." Upon opening the door, Archetko found White sitting on a bed pointing a modified shotgun at the doorway. Archetko quickly drew his weapon and ordered White to drop the gun. White dropped the weapon, and Archetko restrained him with handcuffs. Thereafter, he was taken into custody and transported to the Monroe County Jail.
Five days later, the defendant was taken into federal custody and was transported to federal court for an initial appearance. While he was being transported, White allegedly told the federal agents transporting him that the gun with which he had been found was not his, but in fact belonged to Ms. Mobley's father, and that because he was afraid of his girlfriend, he was trying to unload it when he was discovered by Officer Archetko. These statements were made voluntarily, and not in response to any questioning by the federal ...