UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
March 4, 2009
UNITED STATES OF AMERICA
MICHAEL BROWN AND TYQUAN MIDYETT, DEFENDANTS.
The opinion of the court was delivered by: Matsumoto, United States District Judge
MEMORANDUM & ORDER
Defendants Michael Brown and Tyquan Midyett are charged in a February 2009 superseding indictment ("Indictment") with conspiring, between May 2006 and December 2007, to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(iii) (Count 1); distributing and possessing with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), in, on and within 1,000 feet of (a) the real property comprising a private elementary and secondary school, and (b) the real property comprising a housing facility owned by a public housing authority in violation of 21 U.S.C. § 860(a) (Counts 2-5 & 10); Midyett is charged with possessing a firearm after having previously been convicted of a crime punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. § 922(g)(1) (Count 11); and Brown is charged with using, carrying and/or possessing a firearm during and in relation to a drug trafficking crime (Count 6).
Pending before the court is the defendants' oral motion to preclude the government from introducing at trial the fact that a search warrant for crack cocaine had been issued on January 3, 2007 for an apartment occupied by defendant Michael Brown at Apartment 2A of 125 Nostrand Avenue, Brooklyn, New York ("Apartment 2A"). The government intends to introduce the existence of the warrant and the fact that its object was crack cocaine through the testimony of New York Police Department Captain Brian McGinn, who, on January 9, 2007, authorized the search of Apartment 2A. Defendants additionally seek to preclude the admission of the search warrant on the government's rebuttal if Captain McGinn's knowledge of the warrant is attacked on cross-examination. (See February 27, 2009 Status Conf. Tr., "Tr.," at 95-106.) The procedural history of the defendants' motion is set forth more fully herein. Upon consideration of the parties' arguments, and for the foregoing reasons, the defendants' motion is denied in part and granted in part.
I. Procedural Background
Defendant Brown initially filed a motion with the court to exclude from evidence the actual search warrant for Apartment 2A of 125 Nostrand Avenue and the affidavit in support of that warrant. (Doc. No. 289, Def. Mot. 2/26/09.) The government subsequently responded that the search warrant and affidavit would not be offered. (Doc. No. 292, Gov. Resp. 2/27/09.) However, the government notified the Court and defendants that it expected Captain McGinn to testify that he was aware of the search warrant for crack cocaine. (Id.) Furthermore, the government argued that the search warrant would be admissible for purpose of rebutting cross-examination aimed at impeaching Captain McGinn about "whether he knew that the warrant existed" for the purpose of searching for crack "in that time frame." (Id.)
At the status conference on February 27, 2009, counsel for Defendant Brown objected to Captain McGinn testifying that there was a search warrant for crack cocaine for Apartment 2A, as opposed to testifying simply that there was a search warrant. (Tr. at 95.)*fn1 Additionally, Defendant Brown's counsel argued that evidence of the warrant's existence is irrelevant to show that Captain McGinn had knowledge of the warrant for Apartment 2A. (Id. at 97.) Therefore, according to defense counsel, the warrant should not be admitted as rebuttal evidence after cross-examination of Captain McGinn. (Id.) Through his counsel, Defendant Midyett joined Defendant Brown's motion. (Id. at 100.)
On January 3, 2007, Judge Anthony Ferrara signed a search warrant based on a supporting affidavit that authorized "Any Police Officer in the City Of New York" to search Apartment 2A at 125 Nostrand Avenue in Brooklyn, New York for "evidence of the possession of narcotics and the means of committing a narcotics crime," including but not limited to "evidence of the possession and distribution of crack/cocaine." (Sup. Hr'g Gov. Ex. 1 at 1-2.) It is this warrant for Apartment 2A -- and its specification of crack/cocaine -- that is the subject of defendants' motion.
Captain McGinn testified at the suppression hearing that a few days before January 9, 2007, he learned from the NYPD Narcotics Division that a search warrant for Apartment 2A at 125 Nostrand Avenue has been issued to search for crack cocaine. (Supp. Hr'g Tr. 14.) On January 9, 2007, Captain McGinn was supervising a warrant execution for Apartment 3B in the same building as Apartment 2A, at 125 Nostrand Avenue. (Id., 13.) Prior to executing the warrant for Apartment 3B, Captain McGinn conducted a meeting on the morning of January 9, 2007, with the team of officers from the Emergency Services Unit (ESU) and officers from Housing Bureau Public Service Area 3 (PSA-3) to discuss the procedures for the execution of the Apartment 3B warrant. (Id., 15-16.) Pursuant to the procedures discussed, approximately ten PSA-3 officers and seven ESU officers proceeded to 125 Nostrand Avenue. (Id., 17.) Upon arrival, the PSA-3 officers secured the area outside of the building while the ESU team executed the warrant for Apartment 3B. (Id., 17-20.) Once ESU completed their entry and secured Apartment 3B, Captain McGinn and officers from PSA-3 entered the apartment and conducted a search. (Id., 21.)
Shortly after Captain McGinn entered the building, he was informed by PSA-3 officers stationed outside that "crack cocaine came out of the window of Apartment 2A." (Id., 21.) Captain McGinn, members of ESU, and a law enforcement agent went down to the second floor. ESU knocked on Apartment 2A's door, entered the apartment and arrested individuals in the apartment, including defendants Brown and Midyett. After seven individuals were arrested, Captain McGinn entered the apartment and directed his officers to conduct a search of Apartment 2A. Crack cocaine and a handgun were recovered from Apartment 2A. (Id., 24.)
A. Admission of the Object of the Search Warrant
In support of their position, defendants argued that Captain McGinn's expected testimony that the search warrant was for evidence of crack cocaine lacks sufficient probative value to overcome the unfair prejudice and is inadmissible pursuant to Fed. R. Evid. 403.*fn3 According to defendants, the specification of crack cocaine is not a "necessary predicate for why the police went into the apartment" and demonstrates to the jury that there was "probable cause to believe that there was crack cocaine in Mr. Brown's apartment." (Tr. 95.) Defendants argued that, in light of expected testimony that the officers saw crack cocaine coming out of the window of 2A, the specification of "crack cocaine" with regard to the warrant adds only a "little bit of extra evidence" and minimally "advances the government's case." Therefore, according to the defendants, the minimal probative value is outweighed by unfair prejudice. (Tr. 104.)
In opposition, the government argued that specification of "crack cocaine" regarding testimony about the search warrant is relevant to the credibility of the government's witnesses. (Tr. 105.) The government anticipates "an extensive attack on the credibility of officers relating to the crack cocaine that was thrown out of Apartment 2A." (Tr. 105.) According to the government, because specifying that the search warrant was for crack cocaine bolsters the witnesses' credibility, the detail of "crack cocaine" has high probative value. (Tr. 105.) According to the government, this high probative value is not outweighed by unfair prejudice. (Tr. 105.)
There is little authority on the specific issue of whether testimony or other evidence about the object of a search warrant is admissible. As of the date of this Memorandum and Order, the only other court in this Circuit that has addressed this issue is the District of Connecticut in United States v. Pugh, No. Cr. 302-69 (CRD), 2003 WL 22132915 (D. Conn. Aug. 26, 2003). Although not binding on this court, Pugh is instructive because the defendant made an argument similar to that made by the defendants in this case, namely that testimony about a search warrant would be unfairly prejudicial because it would make the jury aware that there was a determination of probable cause that there were drugs in the premises to be searched. Id. at *2. In Pugh, the court rejected the defendant's argument and held that witnesses could testify that a particular search was conducted pursuant to a search warrant. Id. at *3. The court reasoned that this evidence "helps put the officers' conduct in their proper context and may assist the jury in following the events of that evening." Id. at *3. Although not squarely addressing the specific issue of whether the testimony about the search warrant could properly include the information that the search was for drugs, the court stated that there was no unfair prejudice from an inference that there was probable cause that there were drugs in the house, in part because it was undisputed that drugs were found at the house during the search. Id. at *3.
Taking account of the District of Connecticut's reasoning, and in light of the dearth of authority binding this court, the court's 403 probative-prejudice balancing analysis of the circumstances in this case leads to the conclusion that the government may present testimony of Captain McGinn that the search warrant for Apartment 2A was for crack cocaine. The court finds that this evidence is highly probative to explain why Captain McGinn directed the search of Apartment 2A on January 9, 2007 and puts the officers' conduct in context.
Additionally, the court is not persuaded by defendants' argument that the mention of "crack cocaine" in regard to the search warrant will unfairly prejudice the jury, particularly because the witnesses are expected to testify that crack cocaine was recovered during the search. Defendants' argument of prejudice is based on the assumption that the jurors will be aware that a search warrant may only issue upon probable cause. Even if the jurors are so aware, defendants have not disputed that crack cocaine was discovered during the search of Apartment 2A on January 9, 2007. Finally, considering that "crack cocaine" will be mentioned in different contexts throughout the trial, its mention in conjunction with testimony about the search warrant will not shock the jurors' sensibilities. To the contrary, omission of testimony that a search warrant for crack cocaine existed might lead the jurors to speculate as to the legality and breadth of the search. Therefore, the risk of unfair prejudice is low and does not outweigh the probative value.
For the foregoing reasons, the expected testimony of Captain McGinn about the search warrant, including the specification of "crack cocaine" is admissible.
B. Introduction of the Search Warrant for Rehabilitation Purposes
If Captain McGinn is questioned on cross-examination about his knowledge of the search warrant, the government intends to introduce the search warrant as rebuttal evidence, with redaction of the name "JD Littleman" and all inadmissible hearsay. (Gov. Resp. 2/27/09.) The court agrees with the defendants that the introduction of the search warrant to establish its existence is minimally probative to establishing whether Captain McGinn knew of its existence. Therefore, the search warrant is inadmissible for the purpose of establishing that Captain McGinn knew about it.
However, to the extent that the defendants' counsel questions Captain McGinn during cross-examination in a manner that permits an inference, as determined by the court, that the search was illegal, because, for example, the search exceeded the scope of the warrant as to the place to be search, the things to be searched and seized, or the dates and time of the execution of the warrant, admission of the search warrant for Apartment 2A will be permitted, with redaction of the term "JD Littleman" and all inadmissible hearsay. To that end, the parties are encouraged to stipulate to the fact that a valid search warrant for crack cocaine existed for 125 Nostrand Avenue, Apartment 2A at the time of the search executed on January 9, 2007.
For the foregoing reasons, the defendants' motion to preclude Captain McGinn from testifying that the search warrant was for evidence of crack cocaine is denied. The defendants' motion to preclude the admission of the search warrant is granted except as provided herein.
KIYO A. MATSUMOTO United States District Judge