The opinion of the court was delivered by: Hon. Hugh B. Scott
The instant matter before the Court is defendant's omnibus motion (Docket No. 6*fn1 ) which seeks the following relief: disclosure of informants' identities; "compel discovery and/or production of items and to bar introduction of expert testimony at trial"; production of Brady material; disclosure of Federal Rules of Evidence 404(b), 608, 609 evidence and "to bar introduction of Rule 404(b) evidence at trial"; production of Jencks Act statements; preservation of agents' rough notes; counsel participation in voir dire; pretrial production of Government summaries; voir dire of Government experts outside the presence of jurors; and disclosure of grand jury transcripts. Defendant also moves to suppress evidence seized from him and found at premises alleged to be in his control (id.); that motion is considered in a separate Report & Recommendation. Also before the Court is the Government's reciprocal motion for discovery from defendant (Docket No. 7, Gov't Response at 14-15).
The motion was argued on April 19, 2007 (Docket No. 4). During argument, the Court orally granted defendant's requests for production from probation of certain items surrounding its search policies for defendants under supervised release, any Administrative Orders of this Court adopting probation search policies, a request to search this defendant and his residence, and an in camera review of defendant's probation file. An Order was duly entered as to this disclosure (Docket No. 10) and then a second Order was issued for limited disclosure of the in camera documents (Docket No. 12). Meanwhile, the Government filed a further responding memorandum (Docket No. 11). An evidentiary hearing was held on August 29, 2007, and further submissions were due thirty days after receipt of the transcripts from that hearing (Docket No. 18), which was filed on February 27, 2008 (Docket No. 21). Following a conference on March 14, 2008, parties had until April 18, 2008, to file their respective post-hearing submissions on the suppression portion of the motion (Docket No. 23), later extended (on motion, see Docket Nos. 24, 25) to May 21, 2008 (Docket No. 26), and then to June 23, 2008 (Docket Nos. 30, 28, 29). On June 23, 2008, the parties submitted their respective post-hearing submissions (Docket Nos. 31 (defendant), 32 (Government)) and the motion was deemed submitted on June 23, 2008.
Defendant was indicted in a single count Indictment for being a felon in possession of a firearm, a .45 caliber Colt semiautomatic pistol, on January 12, 2007, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Docket No. 1, Indictment). Defendant was arraigned on March 14, 2007, and pled not guilty (Docket No. 2).
Prior Conviction and Alleged Probation Violation
In January 2005, defendant pled guilty to a single count felony information of conspiracy to distribute cocaine (United States v. Chambers, No. 04CR180, Docket No. 14) and was sentenced to a term of imprisonment of thirty months followed by a term of supervised release of six years (United States v. Chambers, No. 07CR58, Docket No. 7, Gov't Response, at 1; Aug. 29, 2007, Hearing Gov't Ex. 1; see United States v. Chambers, No. 04CR180, Docket No. 27). At issue in the present case is this term of supervised release and the conditions thereunder. One of the standard conditions for supervised release was for defendant to report any changes of his address to the Court's probation department ("probation") within ten days of such change (United States v. Chambers, No. 07CR58, Docket No. 7, Gov't Response, at 1), with a special condition that he would submit to a search of his person, property, vehicle, place of residence or any other property under his control. Other conditions included that he answer truthfully all inquiries by probation and to follow the instructions of probation officers and submit a truthful and complete written report to probation every month (Docket No. 8, Def. Ex. D, Def. Order of Conviction, at 3).
On May 1, 2006, defendant was released from prison and admitted to supervised release. (Docket No. 7, Gov't Response at 1-2.) According to the Government, defendant listed as his residence 237 Sherman Street, Buffalo, New York, but his probation case officer had difficulty finding defendant there (id. at 2).
Steps Leading to Search of Howard Street Premises Probation attempted to confirm (among other things) defendant's current residence. The Government states that, in December 2006, the probation case officer received information that defendant may have been residing either at 40 Howard Street or 285 Northland Avenue, both in Buffalo (id.), and neither addresses were disclosed to probation by the defendant. While observing the Howard Street address, the case officer called defendant and asked where defendant was. Defendant replied that he was walking on William Street. The probation officer asked to meet defendant at the Sherman Street address (his grandmother's house) and he agreed. (Id.) Approximately five minutes later, the officer observed defendant leave the Howard Street address and saw defendant enter a sports utility vehicle. On December 19 and 21, 2006, and January 5, 2007, defendant was observed leaving Howard Street or parking the same sports utility vehicle at that address (id.).
The probation officer sought a Request to Search ("Request") to search the Howard Street address from the Supervising Probation Officer and the Chief Probation Officer on December 15, 2006,. This procedure is consistent with probation's search and seizure policy (effective Feb. 2005). The Request sought "drugs, paraphernalia, [and] guns" (Aug. 29, 2007, Evid. Hearing, Gov't Ex. 3) and was justified because defendant was not at his stated address and surveillance detected him at the Howard Street address.
On January 12, 2007, probation officers made contact with defendant at the Northland Avenue address (the address of defendant's girlfriend) (id.). Defendant was searched there, leading to the discovery of the key that opened the Howard Street residence. Defendant was searched at the Northland address with no contraband found on him. The probation officer did find keys on defendant and seized them from him (Docket No. 6, Def. Motion at 4; Docket No. 7, Gov't Response at 2). The Government justified defendant's search on safety grounds and the special condition contained in his judgment authorizing such searches (Docket No. 7, Gov't Response at 2-3). According to the Government, the search resulted in seizure of keys and a rent receipt for 40 Howard (id. at 3). Probation then seized the defendant, took the key chain and went back to Howard Street. Defendant alleges that without any warrant or suspicion probation officers searched Howard Street and found a firearm under the couch. (Docket No. 6, Def. Motion at 4.) Defendant denies possession of the weapon (id.). The Government states that when questioned about the Howard Street address defendant denied any contact with that address that he just paid the rent. A search of defendant's vehicle (again pursuant to the special conditions imposed for his release) resulted in the seizure of a National Fuel Gas bill for 40 Howard in defendant's name. (Docket No. 7, Gov't Response at 3.) When probation officers entered (with the key seized from defendant) and searched 40 Howard, they found defendant's clothing and documentation with defendant's name indicating that defendant resided there (id.).
Supervised release was revoked in defendant's 2004 case (United States v. Chambers, No. 04CR180, Docket No. 30). On defendant's motions (United States v. Chambers, No. 04CR180, Docket Nos. 32, 35) to dismiss the Violation Petition and Amended Violation Petition (see United States v. Chambers, No. 04CR180, Docket Nos. 28, 33), the Court granted in part and denied in part these motions (United States v. Chambers, No. 04CR180, Docket No. 37). On June 25, 2007, the Court dismissed the Amended Violation Petition without prejudice (United States v. Chambers, No. 04CR180, Docket No. 47). Meanwhile, the Indictment in this case was filed on March 7, 2007 (United States v. Chambers, No. 07CR58, Docket No. 1).
Defendant argues that probation obtained permission from some unknown source to search defendant and the Howard Street and Northland Avenue addresses. He denies ever giving probation permission to search him for either address as well as denies living at either address. (Docket No. 6, Def. Motion at 4.) Defendant was searched at the Northland address on January 12, 2007, with no contraband found on him. The probation officer found keys on defendant and seized them from him (id.; Docket No. 7, Gov't Response at 2).
In this motion, defendant argues that the search of his person and the seizure of the keys was warrantless and without suspicion (Docket No. 6, Def. Motion at 4, 5). He sought production of the authority for probation to conduct this search and seizure--such as its policy statement, adoption of that policy by this Court in a Standing or Administrative Order and the particular request to search defendant (id. at 4, n.2, 13), which was granted (Docket Nos. 10, 12). He sought to suppress his statements made at Northland Avenue while he alleges he was in custody by probation officer or officers (Docket No. 6, Def. Motion at 9). Defendant also seeks disclosures (id. at 10-12 (disclosure of informants' identities), 12-13 (discovery of items and bar expert testimony), 14-17 (production of Brady material), 17-18 (disclosure of Fed. R.
Evid. 404(b), 608, and 609 evidence, and to bar Rule 404(b) evidence at trial), 18-19 (production of Jencks Act statements), 19-20 (preservation of rough notes), 20 (counsel participation in voir dire), 20-22 (pretrial production of Government summaries), 22-23 (voir dire of Government experts outside the presence of the jury), 23 (disclosure of grand jury transcripts)) that will be addressed herein.
Following argument of this motion on April 19, 2007 (Docket No. 9), the Court entered an Order to compel the Government to produce materials relevant to probation's authority to conduct this type of search and seizure and authorization for this particular search. The Order also called for production of defendant's probation file for in camera review to determine what could be produced to defendant (Docket No. 10). The Court then ...