The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. Entry dated December 17, 2009.
The defendant, Daniel Huertas, is charged in a three-count Indictment with having violated Title 18, United States Code, Sections 922(g)(1) and 924(a)(2) (Count 1) and Title 21, United States Code, Section 841(a)(1) (Count 2). Dkt. #28. In Count 3 of the Indictment, the defendant also faces forfeiture of a firearm pursuant to Title 18, United States Code, Sections 924(d) and Title 28, United States Code, Section 2461(c). Id. Presently pending before this Court is the defendant's motion to suppress physical evidence. Dkt. #33. The Court notes that the defendant's omnibus motion for discovery was denied as moot on June 14, 2010. Dkt. #39.
In December 2005, law enforcement received several complaints about heroin distribution from 184 Forest Avenue, Buffalo, New York. Dkt. #37, p.1. Based on its investigation, law enforcement determined that the defendant was responsible for daily deliveries to 184 Forest Avenue and further, that a blue minivan operated by Michelle Montes transported the defendant to 184 Forest Avenue. Id. at pp.1-2. More specifically, the investigation revealed that every morning, a male named "Danny" and a female named "Michelle" supplied 184 Forest Avenue with heroin. Dkt. #1, ¶ 4. In addition, law enforcement learned that the individuals drove a blue Chevrolet Lumina van. Id. On or about January 10, 2006, law enforcement applied for and obtained warrants to search 184 Forest Avenue and 13 Dart Street (lower). Dkt. #37, p.2.
On or about January 12, 2006, as they were preparing to execute the search warrant at 184 Forest Avenue, law enforcement observed the blue minivan.
Dkt. ##1 and 37. The Court notes that there is a discrepancy between the facts alleged in the Affidavit in support of the Criminal Complaint and those facts recited in the Government's Response to the Defendant's Motion. Compare Dkt. ##1 and 37. In the Affidavit in support of the Criminal Complaint, paragraph 6 states, "[o]n or about January 12, 2006, agents were preparing to execute the search warrant at 184 Forest Avenue, when the defendant came down the street driving the blue Chevrolet van."
Dkt. #1, ¶ 6. Moreover, paragraph 7 of the Affidavit states, "[t]he defendant recognized law enforcement personnel and jumped from the blue Chevrolet van and began to run." Dkt. #1, ¶ 7. Whereas, in its Response to the Defendant's Motion (Dkt. #37), the government states that law enforcement observed the blue minivan being operated by Michelle Montes and a marked Buffalo police car attempted to conduct a traffic stop on the van. Dkt. #37, p.2. The government further states in its Response that as Montes stopped the van, law enforcement observed the defendant jump from the passenger side of the van and begin to run. Id. As will be discussed in greater detail below, whether the defendant was the driver or the passenger of the blue Chevrolet van does not alter the Fourth Amendment analysis.
During their pursuit of the defendant, law enforcement observed the defendant remove a clear plastic bag from his person and throw it on the ground. Id. Thereafter, law enforcement secured the defendant and recovered a large plastic bag containing narcotics. Id. Following the defendant's arrest, law enforcement executed the search warrants issued on January 10, 2006 and recovered one shotgun. Id.
The defendant was charged in a Criminal Complaint on January 12, 2006, with knowingly, intentionally and unlawfully possessing with intent to distribute cocaine base. Dkt. #1. Thereafter, on December 10, 2009, a Federal Grand Jury sitting in the Western District of New York returned the instant Indictment. Dkt. #28.
By his motion, the defendant is seeking the suppression of any evidence "found on his person as a result of his arrest on January 12th, 2006 as there was no reasonable suspicion nor probable cause for his arrest." Dkt. #33, ¶ 37. More specifically, the defendant asserts,
41. On or about January 12th, 2006, Police Officers in Buffalo, N.Y, [sic] did, prior to executing a search warrant, observe the Defendant driving in ...