The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On June 28, 2007, defendants were each indicted for Conspiracy to Attack Public Transportation System, Conspiracy to Destroy Building by Fire or Explosive, Conspiracy to Attack Aircraft and Aircraft Materials, Conspiracy to Destroy International Airport Facilities, and Conspiracy to Attack Mass Transportation Facility, in violation of 18 U.S.C. §§ 2332f(a)(1), 844(i), 32(a)(2), 37(a)(2), 1992(a)(4)(B), and 3551 et seq. Defreitas and Kadir were also indicted for Surveillance of Mass Transportation Facility, in violation of 18 U.S.C. § 1992(a)(8) and 3551 et seq.
Pursuant to Rule 41 of the Federal Rules of Criminal Procedure, Defreitas moves to suppress evidence seized from his residences in Brooklyn, New York, and Georgetown, Guyana.*fn1 Kadir moves to suppress evidence seized during his arrest in Trinidad, as well as evidence seized during subsequent searches of a third-party residence in Trinidad and of Kadir's own residence in Linden, Guyana. Finally, Nur moves to suppress a statement he made in the course of his Trinidadian extradition proceedings. All defendants request leave to join in each others' motions to the extent they are applicable and beneficial. For the reasons set forth below, defendants' motions are denied, except to the extent that the court has deferred ruling on the scope of the search of Defreitas' Brooklyn apartment pending receipt of additional evidence.*fn2
The charges in the indictment all stem from the same general allegation that defendants conspired to attack John F. Kennedy International Airport ("JFK") in Queens, New York, by exploding fuel storage tanks. In preparation for this attack, the government alleges that defendants "performed physical surveillance, made video recordings [and located satellite images on the internet] of JFK . . . and its buildings and facilities . . . and sought expert advice, financing and explosives." (Gov't Mem. in Opp'n to Mots. to Suppress ("Opp'n") 2.)
Following an investigation that began in early 2006, the government obtained an arrest warrant for all four defendants on June 1, 2007 from the Honorable Steven M. Gold, Chief United States Magistrate Judge of this district. (First Aff. of Robert Addonizio in Opp'n to Mots. to Suppress ("Addonizio Aff.") 2--3.) That same day, Russell Defreitas, a naturalized U.S. citizen, was arrested in New York. (Id. at 7.) Abdul Kadir, a citizen of Guyana, also was arrested on June 1, at Piarco International Airport in Trinidad and Tobago, pursuant to a provisional arrest warrant issued by a local magistrate. (Opp'n 14; see also Kadir Mot. Ex. E.) The Trinidadian warrant was based on the arrest warrant issued by Chief Magistrate Judge Gold. (Opp'n 14; see also Kadir Mot. Ex. F.) Trinidadian officers conducted a search of his person incident to this arrest, and later searched his luggage pursuant to a local search warrant. (Opp'n 2--3.)
On June 2, 2007, Kareem Ibrahim, a Guyanese citizen, also was arrested in Trinidad and Tobago.*fn3 The same day, Trinidadian law enforcement officials obtained a warrant to search a third-party residence in connection with Kadir's arrest. (Kadir Mot. Ex. G.) This warrant stated, in relevant part, that "there is reasonable ground for believing that Trinidad and Tobago Passports [sic] and documents which will afford evidence as to the commission of an indictable offense namely conspiracy to commit a terrorist act . . . [a]re concealed on the premises of Khalid Hassan . . . ." (Id. Ex. G, 1.) The Trinidadian officials executed the warrant the same day, seizing Kadir's Guyanese passport as well as a number of other banking and travel documents. (Id. Ex. G, 2--3.)
On June 3, 2007, Guyanese law enforcement officers executed a search warrant at Kadir's residence in Linden, Guyana. The warrant stated that there was reason to suspect the presence of "firearms ammunition and related documents" on the premises. (Kadir Mot. Ex. A, 2.) The evidence seized on this date consisted mainly of magazines, newspapers, cards, and books. (See id. at 3.)
On June 6, 2007, Guyanese officers executed a warrant to search Defreitas' residence in Georgetown, Guyana. (Defreitas Mot. Ex. G.) This warrant was issued pursuant to a Guyanese law enforcement affidavit that stated, in relevant part, "there is reason to suspect that . . . [Defreitas] has in his premises . . . firearms, ammunition, [and] explosives . . . ." (Id. Ex. F.) The affidavit did not, however, expressly indicate the basis for this belief.
On June 7, Guyanese officers, this time accompanied by agents of the U.S. Joint Terrorism Task Force ("JTTF"), conducted a second search of Kadir's residence, pursuant to a different Guyanese warrant. (See Addonizio Aff. 4--5.) As with the earlier search of Kadir's residence, this second search targeted "firearms ammunition and related documents." (Kadir Mot. Ex. B, 2.) Among the items seized were passports, diaries, audio cassettes, and floppy disks. (See id. at 3. See generally id. Ex. C.) Also seized were two computer hard drives, which the Guyanese officers turned over to the JTTF agents who, in turn, shipped them to New York. There, "in an abundance of caution," the JTTF sought a separate warrant to search them. The warrant was issued by the Honorable Joan M. Azrack, United States Magistrate Judge of this district, on July 5, 2007. (See Opp'n 24--25; see also Kadir Mot. Ex. D (setting forth the specific information sought from the hard drives).)
On August 6, 2007, extradition proceedings commenced in Trinidad and Tobago against Ibrahim, Kadir, and Nur, pursuant to a treaty between that country and the United States. The government participated in these proceedings. (Nur Mot. 4.) After extradition was granted, all three requested habeas relief from the Trinidadian courts, which was denied. (See generally id. Ex. D.) In the course of the habeas proceedings, Ibrahim, Kadir and Nur each filed a notarized statement with the Trinidadian court. (Nur Mot. 2.) All four defendants are currently in the custody of the U.S. government.
On February 28, 2008, the Honorable Lois Bloom, United States Magistrate Judge of this district, issued a warrant to search Defreitas' apartment in Brooklyn, New York. (See Addonizio Aff.Ex. G; Defreitas Mot. Exs. D, E.) According to the government, Defreitas had resided there at various times between January 2007 and June 2007. (Addonizio Aff. 6.) The apartment is owned by New York City, and was provided to Defreitas "by a confidential source working under the direction of the JTTF." (Id. at 6--7.) When Defreitas was arrested on June 1, 2007, the government locked the apartment, which was then inaccessible to anyone. (Id. at 7.) The government maintains that the JTTF executed the search warrant on March 5, 2008, although "the agents inadvertently failed to write the execution date on the warrant itself." (Addonizio Aff. 7.) The agents seized a number of items, inventorying "both the evidence and the remaining personal property;" the latter "remains available for pick-up by a representative of Defreitas." (Id.; see also id. Ex. H (listing items taken from apartment); Defreitas Mot. Ex. D, 3--4 (same).)
A. Defreitas' Motion to ...