The opinion of the court was delivered by: William M. Skretny United States District Judge
On October 12, 2007, Defendant Kevin L. Todd filed a motion to suppress physical evidence seized from his apartment. By way of Report, Recommendation and Order dated May 1, 2009, the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, recommended that Defendant's motion be denied. Defendant then filed objections to Judge Schroeder's Report, Recommendation and Order.
Presently before this Court is Judge Schroeder's Report, Recommendation and Order and Defendant's Objections thereto. For the reasons discussed below, Defendant's motion to suppress evidence is denied.
On May 18, 2007, shortly before 9:00 a.m., New York State Parole Officers arrived at 341 Landon Street, Buffalo, New York ("341 Landon"), armed with a parole warrant for the arrest of Janine L. Heitzinger, a parolee who had absconded from New York parole supervision. (Docket No. 124, p. 2; Docket No. 134, pp. 6-7.) The Officers received a tip that Heitzinger was living at 341 Landon, and sought to execute the parole warrant for her arrest. (Docket No. 127, p. 2.) Three Hundred Forty-One Landon consists of an upper and a lower apartment. The Officers received information that Heitzinger was in the lower apartment. (Docket No. 124, p. 3.)
Upon arriving at 341 Landon, the Officers knocked on the door to the lower apartment. (Docket No. 134, p. 7.) Heitzinger was resting on a bed in the first floor bedroom at the time. (Docket No. 124, p. 4.) A gun was on the bed where she lay. (Id.) Upon hearing the knocking, Heitzinger fled to the basement and hid under a mattress. (Id.) Heitzinger left the gun on the bed in the first floor bedroom. (Id.)
After no one answered the door, the Officers knocked on the adjoining door that led to the upper apartment. (Id., p. 3.) Defendant Kevin Todd opened the door. (Id.) Parole Officer Kelly Funderburk explained to Todd that they were looking for Heitzinger. (Docket No. 127, p. 2.) Funderburk asked Defendant in what apartment he resided, and Defendant replied "the lower." (Docket No. 124, p. 3.) Funderburk then asked Defendant if he had a problem with the Officers entering the lower apartment in order to "look around for [Heitzinger]." (Docket No. 127, p. 2.) Defendant responded "no," and unlocked the door to the downstairs apartment. (Docket No. 124, p. 3; Tr. 1, pp. 72, 80.)
Upon entering the premises, the Officers observed "drug paraphernalia on the table [in the living room] in the form of baggies, residue, things like that . . . as well as a large amount of female belongings and clothing, giving the impression that [Heitzinger] had been staying there." (Docket No. 124, p. 4; Tr. 1 27, 75.) Funderburk remained with Defendant while the other Officers searched the lower apartment for Heitzinger. (Docket No. 134, p. 9.) Defendant informed Funderburk that Heitzinger had previously been at the lower apartment, but she was not there at the present moment because the two had a fight the night before. (Docket No. 124, p. 3; Docket No. 134, p. 8.) Nonetheless, the Officers continued the search, and they eventually found Heitzinger hiding under a mattress in the basement. (Docket No. 124, pp. 9-10.)
Funderburk then asked Defendant if the Officers could continue the search, and Defendant granted them permission. (Docket No. 124, pp. 4, 11, 12, 15.) The search continued, and the Officers eventually found a gun in a bedroom in the lower apartment, under the bed mattress. (Docket No. 124, p. 5.) At that point, Funderburk asked Todd to stand up, and placed him in handcuffs for reasons of safety.
On August 7, 2007, Defendant and Heitzinger were charged in a multi-count indictment. Defendant was charged with having violated 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1) and 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count 3). (Docket No. 1.) Following indictment, Defendant moved to suppress the gun found in the bedroom. (Docket No. 21.*fn2 ) Heitzinger pled guilty to a One Count Felony Superseding Information, and was sentenced by this Court on November 18, 2008.
B. Defendant's Motion to Suppress and Judge Schroeder's Report, Recommendation and Order
Defendant claims that he granted the Officers permission to enter the lower apartment solely for the limited purpose of searching for Heitzinger. Once Heitzinger was found, Defendant argues that the Officers' lacked authority to continue searching the apartment. Although the Government contends that Defendant granted the Officers additional permission to continue searching, Defendant argues that Funderburk did not ask for Defendant's permission to keep searching, but simply told him that the Officers were going to continue doing so. Because Defendant claims that he never consented to a secondary search, Defendant argues that the gun, which was discovered during this search, must be suppressed.
On May 1, 2009, Judge Schroeder issued a Report, Recommendation and Order, recommending that Defendant's motion to suppress be denied. (Docket No. 124.) In relevant part, Judge Schroeder found that Funderburk asked Defendant for permission to continue the search (Docket No. 124, pp. 4, 11, 15), and Defendant consented by stating "no problem" and "go ahead" (Id., p. 4, 11). Thereafter, Defendant timely submitted objections. (Docket No. 127.*fn3