The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge
Defendants Michael Brown and Tyquan Midyett move to suppress property and contraband recovered during a search by the New York Police Department (NYPD) of Brown's apartment and its occupants in the Marcy Housing Project, at 125 Nostrand Avenue, Apartment 2A, in Brooklyn, New York (Apartment 2A), on January 9, 2007, and Brown's post-arrest statements. Defendants are charged in a seventeen-count indictment with conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and possessing with intent to distribute cocaine base in a school zone and in public housing in violation of 21 U.S.C. § 860. Defendant Brown is also charged with using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Midyett is also charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
1.The Motions to Suppress
A.Brown's Motion to Suppress
Brown filed a motion dated August 6, 2008 (Doc. 124) to suppress the following physical evidence recovered during a search of Apartment 2A: (1).22 caliber revolver and ammunition, (2) 27 vials of crack cocaine seized from a shelf in a closet in or near the kitchen, (3) two cellular telephones, and (4) $122.35 in cash, and statements that Brown made after his arrest. Brown "does not contend that his [post arrest] statement at the precinct was involuntarily made but... contend[s] that it should be suppressed as the fruit of an illegal arrest and search." (Doc. 124, Attach. 1, Brown Mem. at 3.)
Brown's affidavit (Doc. 124, Attach. 2, Brown Aff.) in support of his motion states that on January 9, 2007, he was residing at Apartment 2A (Id. ¶ 2), that at approximately 1:00 p.m. an officer knocked on the door of Apartment 2A, pointed what appeared to be an assault rifle, yelled, "everybody down," struck an individual named Daquan Cassidy with the rifle, and with "several police officers in the hallway behind the officer with the rifle," pulled individuals out of the apartment into the hallway where they were handcuffed. According to Brown's affidavit, officers then entered Apartment 2A and began searching the apartment, and announced that "everything is clean, we didn't find anything." (Id. ¶¶ 3-8.) Brown's affidavit also states that another officer was sent into Apartment 2A and, subsequently, officers reported that they found a gun and other contraband. Brown denies that he or anyone in the apartment consented to the search of Apartment 2A. (Id. ¶¶ 9-11.)
In his initial submission, Brown contended that the physical evidence seized from his apartment and its occupants must be suppressed as a product of a warrantless search of his home. Brown further contended that although officers claimed to have seen an individual throw a plastic bag containing vials of crack out of the window of Apartment 2A, exigent circumstances did not exist and thus did not justify the warrantless search. Brown also asserted that the police did not obtain the consent of the tenant of Apartment 2A for the search. (Brown Mem. at 4.)
Following the government's August 29, 2008 submissions in opposition to Brown's motion, in which the government asserted that a valid search warrant for Apartment 2A and exigent circumstances authorized the search of Brown's apartment, the defendants were invited to make additional submissions. Brown contended in subsequent submissions (doc. nos. 155, 158, 229), that the search of Apartment 2A was not pursuant to a warrant because the officer directing the search did not know about the warrant or sufficient details about the warrant, did not have the warrant in hand at the time of the search, did not communicate the existence of the warrant to the officers conducting the search and that exigent circumstances did not exist.
B. Midyett's Motion to Suppress
In a letter dated August 10, 2008 (Doc. 126), defendant Midyett joined "in all respects" Brown's motion to suppress "all items recovered form [sic] the scene and locus of the arrest," and "all items seized from the person of Mr. Midyett." Midyett subsequently submitted an affidavit dated September 10, 2008 (Doc. 147, Midyett Aff.), in which he stated that he was in Apartment 2A on January 9, 2007 "visiting a legal resident of the premises," was not engaged in illegal activity and did not observe any of the occupants of the premises engaged in any illegal activity. (Id. ¶¶ 1-3.) Midyett's affidavit further states that "without cause, reason or permission," law enforcement officials entered Apartment 2A and conducted an extensive search of the premises and the persons located within, and that during the search of his person, United States currency and "other personal property" were taken from him. (Id. ¶ 5.) Midyett requested that the court conduct a pretrial evidentiary hearing "to assess and review the legality of the search of the said premises and that of my person." (Id. ¶ 6.)
By letter dated October 12, 2008 (Doc. 156), Midyett provided legal authority in support of his assertion that he had a protected privacy interest as an invited guest to Brown's residence in Apartment 2A and, thus, had standing to challenge the search and seizures. Thereafter, on November 20, 2008, Midyett's new counsel, John Burke, Esq., submitted an additional affirmation and memorandum of law (Doc. 176, Burke Aff. and Midyett Mem.) in support of Midyett's motion to suppress the evidence seized in Apartment 2A, and specifically asserted that Midyett had standing to request a suppression hearing regarding $1,700 seized by the police "from a place where [Midyett] has a reasonable expectation of privacy, his pants pocket." Midyett also asserted that the affidavit in support of the search warrant and the search warrant for Apartment 2A indicate that only one person, not Tyquan Midyett, should be searched. (Midyett Mem. at 2.)
C. Government Opposition to Defendants' Motions
In a memorandum of law dated August 29, 2008 (doc. 139, Gov. Mem.), the government opposed the defendants' motion, asserting that at the time of the search on January 9, 2007, there was a valid search warrant for Apartment 2A, signed on January 3, 2007, authorizing, within ten days of the date of issuance, "any police officer in the city of New York" to search Brown and his apartment for drugs, drug paraphernalia and other related evidence during the hours of 6:00 a.m. and 9:00 p.m. The government asserted that the search conducted by the NYPD complied with and was authorized by the warrant. (Gov. Mem. at 6-9.)
The government alternatively asserted that the search of Apartment 2A was justified by exigent circumstances which arose when the NYPD observed an individual throw a plastic bag containing vials of crack cocaine from a window of Apartment 2A, while a search warrant was being executed for Apartment 3B, on January 9, 2007. Upon entering Apartment 2A, according to the government, officers of the NYPD Emergency Services Unit (ESU) conducting a security sweep observed in plain view the hand gun and vials of crack cocaine that matched the vials that the NYPD observed being thrown from the window of Apartment 2A. (Id. at 10-17.)
The government opposed Brown's motion to suppress his "spontaneous" post arrest statements at the police station and his Mirandized statements, asserting that because the search was lawful, the statements cannot be suppressed as fruit of the poisonous tree. (Id. at 18; Exhibit D thereto, Miranda Warnings signed by Brown and handwritten statement signed by Brown.) The government also contested Midyett's standing to challenge the legality of the search of Brown's apartment because he failed to demonstrate any legally cognizable privacy interest in the place searched or items seized. (Id. at 19-21.)
The court conducted a suppression hearing on January 7, 2009. The government presented testimony from NYPD Detective Karyn Lang, who works in the Special Projects Unit of the Narcotics Division, which writes search warrants and keeps copies of special narcotics court search warrants; NYPD Captain Brian McGinn, who directed the searches on January 9, 2007 by the Housing Bureau Public Service Area 3 (PSA-3), which covers all housing developments in Brooklyn North; NYPD Detectives Rene Samaniego and Giovanni Wilson, who were assigned to the Anti-Crime Unit in PSA-3 and participated in the search of Apartment 2A on January 9, 2007. Defendant Brown presented testimony by Everett Grant, a private investigator for Jay Salpeter Associates, who was retained to take photographs of the exterior of the building at 125 Nostrand Avenue.
Detective Lang testified that the Special Projects Unit drafts search warrants for review by a bureau chief or deputy bureau chief, which are then presented by an investigator to the Special Narcotics Court to be reviewed and signed. After the search warrant is signed, the original warrant and supporting affidavit are kept in a locked file cabinet in the Special Projects Unit and a copy of the warrant is given to the investigating officer who signed the warrant application. (Tr. 3-4, 7-12)*fn1
Detective Lang testified that prior to testifying at the suppression hearing, she reviewed the original search warrant 0014-2007 for Apartment 2A of 125 Nostrand Avenue, Brooklyn, New York (Gov. Ex. 1), signed by Judge Anthony Ferrara on January 3, 2007, and the supporting affidavit (Gov. Ex. 2, Tr. 5-8). The warrant authorizes "Any Police Officer in the City Of New York" to search Apartment 2A and an individual known as JD Littleman for "evidence of the possession of narcotics and the means of committing a narcotics crime," including but not limited to:
a. crack/cocaine, vials, caps, glassine envelopes, small ziplock-style bags, and other evidence of the possession and distribution of crack/cocaine, including but not limited to paraphernalia used to process and distribute drugs, including but not limited to dilutants and scales, counter-surveillance equipment, and records and documents reflecting drug transactions.
b. Currency and other evidence of proceeds from drug trafficking, including but not limited to financial records in any format, tending to demonstrate cash transactions or financial transfers derived from the possession of cash currency, money orders, bank receipts, stocks, bonds, bills and receipts for goods and services, documents relating to real estate holdings, and any title or registration to motor vehicles;
c. evidence of ownership and use of the target premises, or the use of property located therein by any person, including but not limited to keys, telephone bills, utility bills, bank statements, leases, deeds, or rent receipts related to the target premises, identification bearing the name or photograph of any person, telephone books, address books, date books, calendars, personal papers, and videotapes and photographs of persons.
The warrant further provides that it may be executed "without prior notice of authority or purpose," during the hours of 6:00 a.m. and 9:00 p.m., and that it must be executed within ...