The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge
The defendants, Jon Lucas ("Lucas") and Lamar Richardson ("Richardson"), stand accused in a five-count indictment of crimes relating to drug trafficking. Lucas moved to suppress tangible property taken from him on the day he was arrested. Richardson has moved to suppress tangible property recovered from the premises in which he was arrested, as well as certain statements he purportedly made to the police.
In regard to the defendants' applications, a hearing was held on March 15 and March 23, 2009. Officers Matthew Klein ("Klein"), Steven Kennedy ("Kennedy"\"), and Jason Kamykowski ("Kamykowski"), as well as Investigator Trevor Powell (Powell"), all of the Rochester Police Department, testified at the hearing.
The Court, having considered the testimony presented and exhibits received into evidence at the hearing, and having made evaluations regarding credibility, makes the following findings of fact and conclusions of law.
Klein is a police officer with the City of Rochester Police Department. He has been so employed since March of 2005, and is currently assigned to the Eastside Patrol Division. In July of 2008, he was assigned to the Tactical Unit. On July 23, 2008, he worked the fourth platoon from 7:00 p.m. to 3:00 a.m. the following day. At about 8:30 to 8:45 p.m. on July 23, 2008, Klein received a phone call on his cell phone from a concerned citizen ("citizen informant"), who did not identify himself or herself by name. Prior to July 23, 2008, Klein had spoken to this individual approximately thirty times. Klein knew where the citizen informant lived and knew the citizen informant's telephone number. The citizen informant told Klein that he/she had just left 1955 E. Main Street Apartment A-1, and that there were two persons inside the apartment. The citizen informant further told Klein that the two persons were selling drugs outside the apartment, that there was a shotgun located inside the apartment, and that the door to the apartment was barricaded with a couch. The citizen informant told Klein that one of the individuals was a drug dealer named Luda. The citizen informant told Klein that, to get Luda to open the door, he should say, "You know me, I'm from up the road at Kelly's place." Klein knew that Kelly was a reference to Robert Kelly, a known user.
The citizen informant was a resident of the area, did not have any criminal charges pending, and did not ask Klein for anything in return for the information being provided. In the past, the citizen informant had provided Klein with information about criminal activity in the East Main Street area, which had proven to be accurate and reliable. Klein knew Luda to be the nickname of defendant, Jon Lucas. The phone call with the citizen informant lasted about two to three minutes.
In response to the information that he received from the citizen informant, Klein proceeded to 1955 E. Main Street, arriving between 8:45 p.m. and 9:00 p.m. He was accompanied by his partner Officer Brad Pike ("Pike"). 1955 E. Main Street is a horseshoe shaped apartment complex with buildings lettered A through E. Upon arrival, Klein and Pike took up a concealed position outside of 1955 E. Main Street, and from their vantage point, were able to observe two to three males standing in front of the apartments. Klein and Pike maintained their concealed position for about hour during which time the males seemed to come and go sporadically.
After this time, due to the minimal foot traffic, Klein called other tactical officers to conduct a knock and talk to see how credible the information from the citizen informant was. A knock and talk is a procedure employed by the police department whereby no more than two plain clothes or uniformed police officers will knock on a residence door and attempt identify the persons inside, as well as try to make observations within the premises to confirm or rule out criminal activity within the location. Klein and Pike were joined by Kennedy, along with officers Hartley,*fn1 Wilcox, Beer, and Kamykowski. Once the other officers arrived, Klein briefed them on the situation, and Klein proceeded to go inside Building A of 1955 E. Main Street. He entered through an unlocked door into a common hallway and went to the door for Apartment # A-1. It was approximately 11:04 p.m., and Klein was in full uniform, including badge, patches and gun belt. The other officers present at the scene were also dressed in their uniforms. Klein stood on stairs to the left of the door of Apartment A-1, and he knocked on the door with his right hand. When Klein knocked there was a response of "who" from inside the apartment. Klein replied, as instructed by the citizen informant, "You know me, you know me from up the road at Kelly's place." There was a short delay of about ten to thirty seconds, during which time Klein could hear something scraping or sliding on the floor within the apartment. Consistent with what the citizen informant had told him, Klein believed this to be a furniture being moved from in front of the apartment door.
Klein then heard the door knob of the apartment door being turned, at which time, he stepped down from the stairs so that he was squarely in front of the door as it opened. When the door opened, Klein observed an individual, who he subsequently was able to identify as Richardson, peering down the sights of a shotgun leveled about twelve inches from Klein's chest. Klein looked at Richardson's face, and started yelling, "police, gun, gun, gun." Klein simultaneously moved for a position of cover and called for other officers, at which time the apartment door slammed shut. Other officers arrived almost immediately, and they and Klein began shouting, "police, open the door, police, open the door." Klein alerted the other officers to the shotgun, and he heard rustling coming from inside the apartment.
At that point, the apartment door again opened, and Klein observed the same person, Richardson, who had just pointed the shotgun at him. Upon opening the door Richardson put his hands in the air. Klein also observed a second male with his hands up standing in hallway in the kitchen area. With his service weapon drawn, Klein proceeded to yell for everyone to come out of the apartment, and from outside the apartment door, asked Richardson who else was inside the premises. In response, Richardson replied, "just us." However, Klein did not know for sure whether there were, in fact, any other individuals within the apartment. Furthermore, although Klein ordered them out of the apartment, Richardson lay down on the floor, while the other male went down to his knees. Therefore, Klein and other officers entered into the apartment to take both into custody.
Moreover, since he could not see the shotgun, and was not sure if there were any other persons within the apartment, Klein and other officers entered the premises to determine if there were any other individuals hiding inside who could potentially harm them while they were taking the persons, whom they could see, into custody. Led by Klein, the officers proceeded into what appeared to be a living room, which led to a hallway in the area of the kitchen. Off the hallway was a bathroom, kitchen, and bedroom. One of the officers handcuffed Richardson. Once inside, Klein recognized the second male, who had gone down to his knees in the hallway, as Lucas, who, as indicated above, he knew went by the nickname of Luda. Kamykowski told Lucas to lie down on the floor, which he did, and then Kamykowski handcuffed him. Upon entering the apartment both Klein and Kamykowski smelled the strong odor of marijuana inside the location.
At the time Kamykowski handcuffed Lucas, he saw a portion of what he believed to be a plastic bag sticking out of the left watch, or small pocket, of the jeans Lucas was wearing. Kamykowski asked Lucas what was in the bag, and Lucas responded that it was marijuana.*fn2 Kamykowski removed what was a plastic sandwich bag from Lucas' pocket, and observed within the bag a green leafy substance, which he believed to be marijuana, and which subsequently tested positive for the presence of marijuana.
Within a few minutes, by approximately 11:10 p.m., the officers conducted a protective sweep of the apartment to ensure that nobody, other than Richardson and Lucas, were inside the premises. The officers searched only those areas where a person could hide. In the course of conducting the protective sweep, Kennedy located a shotgun in plain view in the bedroom area leaning against a wall. In the bedroom, Kennedy also observed a strong box that was partially open, inside of which he saw shotgun shells. About twenty to thirty minutes after securing the premises and after the arrival of a sergeant, Klein left 1955 E. Main Street to apply for a search warrant. However, before he left, as he emerged from the bedroom area back into the living room, Richardson asked Klein, "Klein, Klein, what are you doing at my door?" Richardson's question was not in response to anything said or done by Klein or any other officer.*fn3
Powell is a police officer with the Rochester Police Department and has been so employed for the past twelve years. For the last two years, he has held the rank of Investigator. On July 24, 2008, pursuant to his duties as an investigator with the Rochester Police Department, he had contact with Richardson in interview room 123 at the Department's Eastside office, located at 630 North Clinton Avenue. Along with Investigator Seth Carr ("Carr"), Powell entered interview room 123 at about 2:55 a.m. Interview room 123 is approximately 8 x 12 feet in size. Richardson was sitting in the room with his left hand handcuffed to a ring under the table. Upon entering, Powell may or may not have removed the handcuffs. Powell, though, did introduce himself, and asked Richardson if he needed to use the restroom, wanted anything to eat or drink, or needed a smoke. Richardson said no to the restroom and to something to eat or drink, but did say to Powell that, if he had a smoke, he would like one. In response, Powell gave him a Newport cigarette. Powell then asked Richardson about his education level, to which Richardson responded that he attended twelfth grade at East High School, but was kicked out because of marijuana.
Powell then proceeded at 3:00 a.m. to advise Richardson of his Miranda warnings, using a standard Rochester Police Department Notification and Waiver, received into evidence as Exhibit # 6, to assist him. In a regular speaking voice, Powell read Richardson the five warnings exactly as they appear on Exhibit # 6. He then read Richardson the two waiver questions that appear on Exhibit # 6. Powell first asked, "Do you understand what I just said to you," to which Richardson responded, "Yes." Powell then asked, "With these rights in mind, do you agree to talk to me now," to which Richardson also responded, "Yes."
Powell then proceeded to ask Richardson what happened. In response to this question, Richardson stated that he was in an apartment, heard a knock on the door, asked who it was, and the person said R. Kelly or Kelly. He went on to explain that he opened the door and then shut the door, and then he heard someone say, "Rochester Police Department." At that point, he said that he opened the door for the second time, and the police entered. Powell then asked Richardson if he had a shotgun, but he denied having one. Next, Powell asked him if he knew Officer Klein, to which Richardson responded, "Yes", he knew Officer Klein and that he was a good dude.
Powell then stated to Richardson that Klein saw him point a shotgun at him, and Richardson replied that Klein may have seen him point something at him but it wasn't a shotgun. However, when Powell told him that the police swab all weapons for DNA, and that the his DNA from the discarded cigarette butt was going to be compared with the DNA from the shotgun to see if he handled it in the past, Richardson admitted holding the shotgun or placing the shotgun behind the bedroom door. Powell then asked Richardson to give a written statement, but he declined to do so. At that point, at 3:30 a.m., the interview was terminated.
During the course of the interview, Richardson responded to the questions that Powell asked him, and his responses were coherent. At no time during the interview, did Powell or Carr, who was present, ever threaten Richardson or use any physical force against him to get him to speak with him. Additionally, neither Powell nor Carr made Richardson any promises to get him to talk. Moreover, Richardson never indicated that he wanted a lawyer, nor did he, prior to being asked to sign a written statement, ever indicate that he did not want to talk with the police. Further, Richardson, did ...