MEMORANDUM-DECISION and ORDER
On March 25, 2008, Defendant Steven Ray Morgan was arrested after law enforcement executed search warrants at 708 Craig Street and 833 Grant Avenue in Schenectady, New York, and recovered marijuana, crack cocaine, a firearm, and other contraband. Def.'s Mem. of Law at 2-3 (Dkt. No. 13, Attach. 2). On April 28, 2008, Defendant was indicted on two counts of possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B); one count of possession with intent to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A); one count of unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Indict. (Dkt. No. 6). On August 1, 2008, Defendant filed the instant Motion to suppress any and all statements he made to law enforcement on March 25, 2008, and any and all evidence seized from 708 Craig Street and 833 Grant Avenue on March 25, 2008. Def.'s Mem. of Law at 1 (Dkt. No. 13, Attach. 2). The Government opposes the Motion to suppress. Gov.'s Resp. (Dkt. No. 14).
A. Statements to Law Enforcement
Defendant claims he was not administered the Miranda warnings prior to the extraction of oral and written statements by means of interrogation by law enforcement subsequent to his arrest on March 25, 2008. See Miranda v. Arizona, 384 U.S. 436 (1966); Def.'s Mem. of Law at 5 (Dkt. No. 13, Attach. 2). Furthermore, Defendant states that he told the officers that he did not wish to speak with them, and did not voluntarily and affirmatively waive his Miranda rights prior to making the alleged oral and written statements. Id. at 6-8. See United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980. The Government disputes these factual claims. See Gov.'s Resp. at 10 (Dkt. No. 14). Accordingly, a hearing is necessary to resolve these issues and determine if the oral and written statements were obtained in violation of Defendant's rights arising under the Fifth Amendment.
B. Evidence Seized from 708 Craig Street and 833 Grant Avenue
Defendant alleges that the evidence seized from 708 Craig Street and 833 Grant Avenue in Schenectady, New York, on March 25, 2008, must be suppressed based on several Fourth Amendment violations. See Def.'s Mem. of Law at 10 (Dkt. No. 13, Attach. 2). Specifically, Defendant argues that each search warrant failed to establish probable cause to search the location specified; failed to satisfy the Fourth Amendment's particularity requirement; and was not secured pursuant to Rule 41 of the Federal Rules of Criminal Procedure. Def.'s Mem. of Law at 10-14 (Dkt. No. 13, Attach. 2). Defendant also claims that the execution of the search warrant at 833 Grant Avenue exceeded its permissible scope. Id. at 13. Several of these arguments challenge the facial validity of the warrants and warrant applications, and may be evaluated without an evidentiary hearing. With regard to other issues, as described infra, the Court orders a suppression hearing.
1. Fourth Amendment Objections to Search at 833 Grant Avenue
The Government concedes that Defendant has a right to assert Fourth Amendment objections to the search and seizure of items at 708 Craig Street. See Gov.'s Resp. at 10 (Dkt. No. 14). The Government argues that Defendant lacks standing to contest the constitutionality of the issuance of the search warrant for 833 Grant Avenue and execution of the search at that address. Id. The search at 833 Grant Avenue resulted in the seizure of crack cocaine, a gun, and other items. Id. at 3.
"[T]o claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Minnesota. v. Carter, 525 U.S. 83, 88 (1998). A defendant need not reside at the premises searched to establish a right to constitutional protection. See, e.g., Unites States v. Osorio, 949 F.2d 38, 42 (2d Cir. 1991) (holding that an overnight guest may raise a Fourth Amendment objection to a warrantless search of the host's home). A defendant's presence for the sole purpose of a business transaction, such as selling drugs, does not give rise to a Fourth Amendment interest. Carter, 525 U.S. at 86, 89.
In his Motion and accompanying papers, Defendant has not demonstrated that he is entitled to Fourth Amendment protection in relation to the search and seizure of items at 833 Grant Avenue. This is a threshold issue that must be established before a court will reach the merits of a constitutional objection. See, e.g., United States v. Goldsmith, 432 F. Supp. 2d 161, 162-163 (D.Mass. 2006). The Court will entertain evidence, if any, offered by Defendant at the suppression hearing to establish standing to contest to the search of 833 Grant Avenue. If, however, Defendant does not establish a Fourth Amendment interest in the search at 833 Grant Avenue, then the Court will not entertain the constitutional issues Defendant argues in relation to that address.
Furthermore, the Court will not take evidence on Defendant's two objections to the issuance of the search warrant for 833 Grant Avenue, because even if Defendant establishes standing, the Court is already in possession of the evidence that is needed to reach the merits of those issues. The Court touches on these objections below in discussing Defendant's Fourth Amendment objections to the search and seizure of items at 708 Craig Street, which raise substantially similar issues.
Defendant also argues that the execution of the search at 833 Grant Avenue exceeded the scope of the warrant. See Def.'s Mem. of Law at 13-14 (Dkt. No. 13, Attach. 2). No similar objection is made in relation to the search of 708 Craig Street. At the hearing, if Defendant demonstrates that he is entitled to Fourth Amendment protection for 833 Grant Avenue, or at least convinces the Court that further deliberation on the standing issue is necessary, then the Court will take evidence in relation to the execution of the search warrant at 833 Grant Avenue. A comparison of the face of the search warrant for 833 Grant Avenue to the descriptions about where the crack cocaine was seized does not entirely establish the proximity of the staircase to 833 Grant Avenue, first floor flat. See Warrant App. for 833 Grant Ave. (Dkt. No. 13, Attach. 5). Therefore, the parties should be prepared at the hearing to offer any evidence they wish the Court to consider in relation to the execution of the search.
Defendant alleges that the search warrant applications for 708 Craig Street and 833 Grant Avenue, and affidavits annexed thereto, fail to establish probable cause. Def.'s Mem. of Law at 11-12 (Dkt. No. 13, Attach. 2). Defendant argues that the "application for search warrants for both places relies on the unsworn, unsigned, draft DEA-6 forms related to the investigation into Steven Morgan," and that such forms, along with the sworn statement of the confidential informant (CI) that was submitted in support of each application, does not establish probable cause. Id. Each application was also accompanied by an affidavit sworn by Detective ...