The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's motion for discovery, to suppress a firearm and his statements, and for a suppression hearing (among other relief sought) (Docket No. 8*fn1 ). This case was referred to the undersigned for pretrial matters on February 7, 2007 (Docket No. 7).
Defendant was indicted on January 9, 2007, for possession of a firearm (a Rossi .38 caliber revolver) by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Docket No. 1, Indictment). He entered a not guilty plea on January 16, 2007, and a Scheduling Order was entered for motions to be argued initially on April 12, 2007 (Docket No. 3), but that was rescheduled to May 2, 2007 (Docket No. 10).
Most of the facts appear not to be in dispute. Buffalo Police Officer Robert Salamone observed defendant, on January 19, 2006, engage in what appeared to be a narcotics transaction. Salamone then approached defendant and alleges that he observed the butt of a revolver protruding from the right side of defendant's waistband. (See Docket No. 8, Def. Atty. Affirm. ¶ 7, Ex. A, Thomas Rodriguez Aff. ¶ 3.) At this point, defendant then fled, with Salamone chasing him, through backyards on Walden Avenue, Buffalo, New York. Defendant allegedly tossed something near 365 Walden Avenue and was apprehended on 357 Walden Avenue. (Id., Ex. A., Rodriguez Aff. ¶ 3.) Salamone and Officer Mark Alberti retraced the pursuit route and found a Rossi revolver on the front porch of 365 Walden Avenue (id.).
Defendant contends that the officers lacked probable cause to stop and seize him (Docket No. 8, Def. Atty. Affirm. ¶ 9), and argued in oral argument that he needs to examine the officer to determine his perspective and whether he in fact saw a gun butt on defendant's person. Defendant claims that he did nothing suspicious, had no charges pending against him, did nothing wrong, and thus there was no probable cause for the police officers to approach him (id. ¶ 14). He noted in oral argument that there was no reason for officers to approach him and the revolver at issue was not found on defendant's person.
Defendant seeks to suppress the revolver (id. ¶¶ 4, 8-16) and his statements, because he was never given Miranda warnings (id. ¶¶ 4, 17), and moves for an evidentiary hearing on these two points (id. ¶ 19). He also seeks disclosure of Federal Rules of Evidence 404(b), 608, and 609 material (id. ¶¶ 4, 20-27); disclosure of Jencks Act material (id. ¶¶ 4, 28-30), Brady material (id. ¶¶ 4, 31-33); and discovery and inspection (id. ¶¶ 4, 34-53). He also seeks the right to make further motions (id. ¶¶ 54, 4).
The Government responded that the actions of the police officers in approaching defendant were appropriate and that the officers had probable cause (from observing the gun butt in the waistband of defendant's clothing) to stop defendant and defendant's motion to suppress the firearm should be denied (Docket No. 13, Gov't Response at 1-2). The Government next argues that defendant lacks standing to contest the seizure of the revolver, found on the porch, after he abandoned it (id. at 2). As for defendant's statements, the Government reports that it turned over the New York CPL 710.30 form and that form indicated that defendant did not make any statement to the police and the Government has not indicated that it intended to use his statements, thus the Government deems the motion to suppress his statements as moot (id. at 3).
The Government's responses to the discovery motions will be addressed in the discussion below at each particular item requested. The Government cross-moved for reciprocal discovery from defendant (Docket No. 13, Gov't Response at 8).
At oral argument on May 2, 2007, the parties conceded that most of the discovery issues were resolved.
While defendant outlines the Government's basis for probable cause, he argues that he should have a hearing to obtain the officer's testimony on what he observed leading to the pursuit of defendant and ultimately finding the revolver. Also, defendant's motion raises the question whether Miranda warnings were given to defendant upon his arrest. Despite the Government's argument that no statements were made at the time of the arrest, that issue needs to be fleshed out as well.
Therefore, a suppression hearing will be held on Wednesday, May 16, 2007, at 1:30 pm, before the undersigned. Defendant currently is in state custody; the Government, therefore, shall make ...