The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendant Anthony White, charged in a one-count indictment with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), moves to suppress evidence, specifically a loaded handgun, he asserts was obtained as the result of an illegal search and seizure conducted on May 1, 2008. For the reasons set forth below, Defendant's motion is denied.
I. FACTS*fn1 On March 7, 2007, Defendant was released by the New York Department of Correctional Services to the custody of the New York Division of Parole and became subject to its conditions of parole. (Gov't Ex. 1.) Specifically, Defendant signed "Conditions of Release" which state, in part:
I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property. I will discuss any proposed changes in my residence, employment or program status with my Parole Officer. I understand that I have an immediate and continuing duty to notify my Parole Officer of any changes in my residence, employment or program status when circumstances beyond my control make prior discussion impossible. (Id.) In addition, Defendant agreed to "fully comply with the instructions of Parole Officer and obey such special additional written conditions as he, a Member of the Board of Parole or an authorized representative of the Division of Parole, may impose." (Id.) On March 28, 2007, the Division of Parole imposed Special Conditions of Release to Parole Supervision ("Special Conditions") on Defendant, which stated that Defendant "will be restricted from St. Nicholas Projects Complex, New York City." (Gov't Ex. 2.) The Special Conditions contain the following certification signed by Defendant: "I hereby certify that I have read and understand the above Special Conditions of my release and that I have received a copy of these Special Conditions." (Id.)
A. The May 1, 2008 Search
i. Testimony of Parole Officer Deal
New York State Parole Officer Eugene Deal testified that he has been a parole officer for almost eighteen years; his duties and responsibilities as a parole officer are: "To reintegrate parolees back into society by using social service programs, nonprofit organizations, policing their activities, helping them try to be successful citizens in society." (September 26, 2008 Hearing Transcript ("Tr.") at 15-16.)
In the afternoon of May 1, 2008, Parole Officer Deal and several members of the New York Police Department ("NYPD") conducted a special operation to execute an arrest warrant for Defendant. (September 26, 2008 Hearing Transcript ("Tr.") at 15-16.) The arrest warrant was issued on April 10, 2008 due to Defendant's failure to report to his parole officer as required by his Conditions of Parole, as well as absconding from his approved residence, a violation of his Conditions of Parole. (Tr. at 16-17; Gov't Ex. 4.)
On April 30, 2008, in preparation for the next day's special operation, Parole Officer Deal reviewed Defendant's parole file on the Division of Parole's "CMS" information database and learned that Defendant (1) had absconded from the Division of Parole as of April 10, 2008, (2) had not had a positive home visit since January 2008, and (3) previously listed 230 West 129th Street, which is part of the St. Nicholas Complex, as his residence to the Division of Parole from 12/4/06 to 12/15/06 and on 3/7/07. (Tr. at 35, 40, 42, 43, 67; Gov't Ex. 3.) In addition, Parole Officer Deal testified that the residence address inquiry on the Division of Parole's CMS database showed that Apartment 3C, on the third floor of 230 West 129th Street, was listed as a previous residence for Defendant. (Tr. at 38-40; Gov't Ex. 5.) Michelle Daise was listed as a co-occupant. (Id.) Parole Officer Deal testified that a parolee's previous addresses are relevant "because usually the parolees, they go back to their old addresses. And when we do absconder search or we do any kind of special ops and stuff, we go back to the old apartments or their previous apartments and we find most of the guys at their previous addresses." (Tr. at 67.) Parole Officer Deal testified that he was not aware of the Special Conditions restricting Defendant from the St. Nicholas Projects. (Tr. at 21-22.)
In the afternoon of May 1, 2008, Parole Officer Deal, NYPD Lieutenant Cullen, NYPD Detective Wenzel, and several other police officers arrived at 230 West 129th Street, Manhattan (the "Building"), which is part of the St. Nicolas Projects. (Tr. at 43-44.) Parole Officer Deal and Lieutenant Cullen proceeded into the building, through the lobby, and up the stairwell to the third floor. (Tr. at 44.) Other NYPD officers were positioned in an opposite stairwell, also at the third floor. (Tr. at 44.) NYPD officers also monitored the operation from outside of the Building. (Tr. at 48, 54.) The officers were in touch on walkie talkies and Nextels. (Tr. at 48.)
After assuming a position in the stairwell, Parole Officer Deal confronted a male in his 20s, later identified as Rakim Granger, who entered the stairwell after leaving an apartment on the third floor of the Building. (Tr. at 44-45.) Granger told Parole Officer Deal that he had just exited Apartment 3C (the "Apartment"), located near the stairwell. (Tr. at 45.) Upon questioning Granger in the stairwell, Parole Officer Deal learned that Granger was on parole and searched his person. (Tr. at 45-46.) Parole Officer Deal recovered a golf ball size amount of crack cocaine from the pocket of Granger's underwear. (Tr. at 46.) Parole Officer Deal asked Granger what he was doing in the Building, and Granger said that he was visiting a friend. Parole Officer Deal and Detective Wenzel then showed Granger a photograph of Defendant and asked if the individual in the photograph was his friend. Granger responded, "Nah, I don't really know him like that." Then they asked Granger if the individual in the photograph was in the Apartment. (Tr. at 45-46.) Parole Officer Deal testified that Granger responded, "you know he is." (Tr. at 47.) Granger was then taken out of the stairwell by NYPD officers. (Tr. at 47-48.)
About fifteen or twenty minutes later, Parole Officer Deal, Lieutenant Cullen, and other NYPD officers approached the Apartment door. Parole Officer Deal orally identified himself as Parole Officer Deal of the Division of Parole, asked to speak to Anthony White, and announced that he had an arrest warrant for Anthony White. (Tr. at 49-50.) Lieutenant Cullen also asked Defendant to come out, saying "we knew he was in there, we wanted him to come out, make this easy." (Tr. at 49.) Parole Officer Deal testified that Defendant responded with loud cursing from inside the Apartment saying, "Fuck this shit. You all going to get me, you all going to have to fucking kill me. Fuck that. I'm not coming out for this shit." (Tr. at 51.)
Parole Officer Deal and Lieutenant Cullen remained outside of the Apartment door for approximately twenty minutes. (Tr. at 52.) At that time, Lieutenant Cullen removed the removed the peephole of the Apartment's door, and portions of the Apartment's interior could be viewed through the former peephole from the hallway. (Tr. at 51-53.) Through the former peephole, Parole Officer Deal saw the defendant carrying a white bag and walking between the rooms of the apartment. Parole Officer Deal "thought [the bag] was a pillowcase at first. It was just like a white knapsack." (Tr. at 53.) Parole Officer Deal could not see Defendant the entire time he was looking through the peephole, and there were periods he was not looking through it. (Tr. at 54, 99.) At times, Lieutenant Cullen looked through the peephole. (Tr. at 99.)
During the time that Parole Officer Deal and Lieutenant Cullen were outside the Apartment door, the NYPD officers stationed outside of the building were radioing the officers outside of the Apartment door with Lieutenant Cullen and Parole Officer Deal. (Tr. at 54.) Parole Officer Deal testified that he could hear the walkie talkies of the officers in the hallway with him, and the officers outside of the Building were explaining what they were observing over the walkie talkies. (Tr. at 55-56.) Parole Officer Deal testified that he heard "that Mr. White at the time was at the window. It seemed like he was trying to climb or jump out of the window. He had opened the window, and that they thought he was about to jump out the window. You could hear people from the projects telling him to go back in, don't jump, don't jump, go back into the window."
(Tr. at 56.) Parole Officer Deal did not recall hearing the officers say that White had anything with him at the window. (Tr. at 57.) At some point during this time, Lieutenant Cullen told Defendant that, if necessary, they would "break the door down," or words to that effect. (Tr. at 89-90.)
Approximately one hour after Parole Officer Deal first announced himself at the Apartment, Defendant opened the door. Parole Officer Deal put his foot in the door, and Defendant exited the Apartment with keys in his hand. (Tr. at 56.) A neighbor entered the hallway, and Defendant told the neighbor to lock the door to the Apartment. (Tr. at 56.) Parole Officer Deal told Defendant that he was going to search the apartment. (Tr. at 56-57.) Defendant asked how could he do that, and Parole Officer Deal responded that he is a parole officer and "this is where you live at. This is the place where ...