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United States v. Goncalves

September 5, 2008

UNITED STATES OF AMERICA,
v.
MANUEL GONCALVES, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief United States District Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Defendant Manuel Goncalves moves for reconsideration of the Court's denial of his motion to suppress evidence in connection with law enforcement's first and third entries into his residence on May 10, 2007. See Dkt. No. 37, Memorandum-Decision and Order entered May 15, 2008. The government opposes defendant's motion for reconsideration.

II. BACKGROUND

The Court set forth its findings of fact and conclusions of law in its prior decision, familiarity with which is assumed. In its prior decision, the Court: denied defendant's motion to suppress evidence obtained as a result of law enforcement's first warrantless entry into defendant's residence, specifically, Officer Patrick Coyle's detection of the odor of marijuana upon entering the residence; granted defendant's motion to suppress any evidence obtained as a result of law enforcement's second, warrantless, entry; and denied defendant's motion to suppress evidence obtained following law enforcement's search of his residence pursuant to a warrant.

III. DISCUSSION

In his motion for reconsideration, defendant argues that: (1) evidence obtained as a result of the first entry should be suppressed based on Georgia v. Randolph, 547 U.S. 103, 106 (2006), because defendant's demand that law enforcement leave the residence prevails over Stacey Goncalves's consent to their entry; (2) evidence obtained as a result of the search warrant should be suppressed because (a) it was based, in part, on Officer Coyle's observations after defendant demanded that law enforcement leave the residence, and (b) there is evidence that Detective Susan Izzo was aware of the second illegal entry into the residence prior to applying for the search warrant, thus, the warrant application process was tainted; and (3) in the alternative, the Court should reopen the suppression hearing for further testimony with regard to these matters.

Reconsideration is appropriate in light of an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Doe v. New York City Dep't of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983). The decision whether to reopen a suppression hearing lies within the Court's discretion. United States v. Bayless, 201 F.3d 116, 131-32 (2d Cir. 2000).

A. First Entry

Defendant argues, for the first time, that his demand that law enforcement leave the premises "prevails" over any consent that Stacey Goncalves gave to law enforcement to enter the residence. In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Id. at 120.

Reconsideration based on Georgia v. Randolph, is not required in this case because, as the Court previously found, Stacey Goncalves consented to law enforcement's*fn1 entry into the residence and Officer Coyle detected the odor of marijuana before defendant appeared and told them to leave. See id. at 121-22 ("So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it."). Thus, even if defendant revoked any consent Stacey Goncalves gave when he instructed law enforcement to leave his residence, the credible evidence shows that Officer Coyle had detected the odor of marijuana before defendant appeared:

Q: After you got to the second set of doors or the French doors, what did you do at that point?

A: I stepped in right through the threshold of the door and immediately upon entry, I noticed a ...


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