The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendant Alberto Mendoza ("Mendoza") is charged in a one-count indictment with conspiracy to distribute and to possess with intent to distribute more than 100 grams of heroin. Alleging violations of the Fourth Amendment, Mendoza moves to suppress physical evidence that was the product of a law-enforcement entry into his home on the day of his arrest. I heard argument and held an evidentiary hearing on August 5, 2009. For the reasons that follow, Mendoza's motion is DENIED.
On November 10, 2008, Mendoza was arrested as he exited his home at 79-10 32nd Street in Queens through a side door. Tr. 71.*fn1 The investigation that led to his arrest began a short time prior to that date, when a confidential informant ("CI") informed Drug Enforcement Agency ("DEA") Special Agent Brian Crowe ("Crowe") that he, the CI, could purchase one kilogram of heroin from an individual who was later identified as Mendoza's co-defendant inthe indictment, Carlos Gomez ("Gomez").*fn2 Tr. 6. Thereafter, Crowe instructed the CI to arrange to meet with Gomez to obtain a sample of the drug. Tr. 7. The CI met with Gomez on November 6, 2008 in the Bronx, and Gomez provided a sample that later tested positive as heroin.*fn3 Tr. 7, 83. Subsequently, the CI arranged for the one-kilogram transaction to occur on November 10. Tr. 8. It was agreed that Gomez would meet a livery cab, ostensibly driven by an employee of the CI who was in fact an undercover agent. Tr. 11. Through a series of phone calls, some of which were recorded and all of which were monitored by Crowe and his fellow agents, the CI and Gomez refined the details of the planned transaction. Tr. 9-11. It was clear to the agents that initially Gomez did not know where the transaction would occur, first telling the CI only that the meeting would be somewhere in Queens. Tr. 12. Ultimately, Gomez informed the CI that the meeting would occur on the corner of 32nd Avenue and 79th Street in Queens. Id. Gomez also informed the CI that the quantity of heroin would be 804 grams, instead of the kilogram that was originally contemplated. Tr. 11.
Crowe testified that he and the CI drove to the designated corner in the early evening of November 10, 2008, and from the car the CI identified Gomez for Crowe and his fellow agents.*fn4
Tr. 12. Shortly after the CI identified Gomez, Crowe parked his vehicle in a driveway in the middle of the block on 32nd Avenue, almost directly across the street from the home at 79-10 32nd Street, and together with other agents took up surveillance of the corner.*fn5 Tr. 12, 62. The agents observed the livery cab pull up to the corner and saw Gomez enter the vehicle, which then drove slowly down the block, at which point Gomez exited the vehicle. Tr. 13. Although Crowe did not hear the radio transmissions directly, other members of the task force, by means of a concealed recording device, were listening in on the conversation between Gomez and the undercover agent posing as a livery cab driver. Tr. 13-14.
After Gomez exited the livery cab, the agents surveilling from their vehicle observed him walk up the block toward the home at 79-10 32nd Avenue, at which point an individual whom they had never seen before, but was later determined to be Mendoza, exited the residence. Tr. 15. Mendoza handed Gomez a black backpack and return to the home; the agents could not hear what, if anything, was said in the exchange. Tr. 15, 20, 65. The livery cab then returned, but as Gomez attempted to enter the car it sped off and a signal was given to arrest Gomez. Tr. 17-18. Gomez was arrested on the sidewalk, approximately two doors down from the home at 79-10 32nd Avenue, causing some commotion on the block. Tr. 18, 36. The arresting agents quickly determined that the backpack that Mendoza had handed Gomez carried only a bicycle pump and contained no contraband. Tr. 18, 37.
Crowe, Special Agent Matthew Griemel (who also testified at the hearing), and three other agents then went up the stoop to the door to 79-10, knocked, and announced their presence as police officers. Tr. 19, 22. Crowe testified that he approached the home because he believed it was a stash house for the heroin, based in part on the fact that the telephone calls between the CI and Gomez confirmed that Gomez had to travel to a location in order to obtain the drugs and consummate the transaction as planned. Tr. 19. After the agents knocked, through the glass panes of the front door they observed Mendoza descend the staircase and peer out through the glass at the agents in their protective vests marked "Police" and the "commotion" that surrounded the site of Gomez's arrest. Tr. 23. Mendoza then turned and ranquickly up the stairs, turning off the light as he went. Tr. 23.
At this point, Agent Griemel kicked in the door, and the agents followed Mendoza but lost him. Tr. 24. When they arrived at the top of the staircase they entered into an open eating area and noticed ahead and to the right a room with its door open and a light and television on inside. Tr. 25, 27, 29. Griemel and Crowe entered the room, which each of them testified was small and sparsely furnished with only a mattress on the floor and a small television on a nightstand. Tr. 29, 79. The agents scanned the room briefly looking for Mendoza and opened the door to the closet as part of their sweep. Tr. 48. Crowe testified that as he turned to exit, he looked down and observed a black duffle bag on the mattress in plain view such that "you wouldn't have been able to miss it." Tr. 52. The bag was open and in it Crowe observed taped packages with numbers written on them and that resembled others that he had seen in other narcotics investigations. Tr. 30. Greimel also testified that the open bag was visible from the doorway as he entered the room with Crowe to look for Mendoza and that he necessarily moved closer to it as he entered the room to help conduct the sweep. Tr. 70. Shortly thereafter, Crowe and Griemel were advised by their fellow agents that Mendoza had been arrested exiting the building by way of a side door. Tr. 71. Ultimately it was determined that the bag contained 804 grams of heroin in two taped packages, one numbered "661" and the other "103." Tr. 30.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated...."' U.S. CONST. AM. IV. A warrantless search is per se unreasonable unless one of a "'few specifically established and well-delineated exceptions" applies. Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007) (quoting Schnecklothv. Bustamonte, 412 U.S. 218, 219 (1973)). Because "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," the Supreme Court has repeatedly held that warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 585-586 (1980) (internal quotation omitted). Consequently, the Government bears the burden of proving that entry to a defendant's home was justified. See United States v. Zabare, 871 F.2d 282, 289 (2d Cir. 1989) (citing Coolidgev. New Hampshire, 403 U.S. 443, 474-75 (1971)).
It is well-established "that the warrant requirement must yield in those situations where exigent circumstances demand that law enforcement agents act without delay." United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119 (1991)). Thus, "'police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.'" Loria v. Gorman, 306 F.3d 1271, 1284 (2d Cir. 2002) (quoting Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam)). "Exigent circumstances refer generally to those situations in which law enforcement officers will be unable or unlikely to effectuate an arrest, search or seizure for which probable cause exists, unless they act swiftly, even though they have not obtained prior judicial authorization." United States v. Gallo-Roman, 816 F.2d 76, 79 (2d Cir. 1987). Such situations have been found to include hot pursuit of a fleeing felon, United States v. Santana, 427 U.S. 38, 42-43 (1976), actions taken to prevent the destruction of evidence, Schmerber v. California, 384 U.S. 757, 770-71 (1966), and actions taken in response to an ongoing fire, Michigan v. Tyler, 436 U.S. 499, 509 (1978). "The essential question" in the determination is whether law enforcement agents were confronted by an 'urgent need' to render aid or take action." MacDonald, 916 F.2d at 769.
"[T]he test for determining whether a warrantless entry is justified by exigent circumstances is an objective one that turns on the district court's examination of the totality of circumstances confronting law enforcement agents in the particular case." United States v. Gordils, 982 F.2d 64, 69 (2d Cir. 1992). The Second Circuit ...