The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are (a) defendant's motion (Docket No. 24*fn1 ) for reconsideration of the Order of detention (see Docket No. 7), and (b) the Government's motion to reconsider (Docket No. 26*fn2 ) the Report & Recommendation (see Docket No. 23) rendered in this case. Familiarity with that Report & Recommendation is presumed.
BACKGROUND Defendant is charged in a single count Indictment with unlawful possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(b)(10(C), as well as a forfeiture count (Docket No. 1, Indict., dated June 22, 2010). Defendant was arrested on May 13, 2010 (see Docket No. 1, Criminal Complaint, dated May 13, 2010; see also Docket No. 11, Gov't Response at 1), after the Buffalo DEA Task Force and Olean Police Department obtained a search warrant of 509 North Fifth Street, Olean, New York (Docket No. 1, Crim. Compl.,Higgins Aff. ¶ 4). During the search, agents seized (among other items) over 70 grams of a substance field tested positive for cocaine, baggies, and a digital scale (id. ¶ 4 a.-f.). According to the agent's affidavit in support of the Complaint, after defendant's arrest and being advised of his rights, he stated that the cocaine found in a 2009 Ford Focus was "bunk" cocaine, or cocaine diluted with other substances used to trick people believing that they were purchasing purer cocaine (id. ¶ 6).
Upon defendant's initial appearance on the criminal Complaint in this matter, the Government moved for detention and the defendant was remanded pending a detention hearing (Docket No. 2). After some adjournments (see Docket Nos. 3, 4), the detention hearing was held on June 14, 2010, and he was ordered detained (without prejudice) as a risk of flight and risk of danger (Docket No. 7).
Defendant was arraigned on the Indictment on June 25, 2010 (Docket No. 8; see also 10CR180, Docket No. 1, Indict.).
The search at issue occurred at the home of defendant's wife, Intisar (Docket No. 10, Def. Atty. Affirm. ¶ 4), where defendant was sleeping as an overnight guest (Docket No. 16, Def. Aff. ¶ 2). The search warrant was issued by Olean City Court Judge Daniel Palumbo, upon the affidavit of Olean Police Investigator Andrew Langdon and in camera testimony of a sworn confidential informant. According to notes and tape recording submitted in camera to this Court for inspection, the confidential informant stated that he was in the residence at 509 North Fifth Street, where the informant stated that defendant had weighed 60 grams of cocaine, with cocaine in plain sight.
The warrant was executed at 2:00 am on May 13, 2010, while defendant was asleep (Docket No. 16, Def. Aff. ¶ 2). Defendant denied giving permission to the police to enter and he asked repeatedly to see the warrant but was only shown it after the house was searched (id. ¶¶ 3, 4; see id. ¶ 5 (claiming officers gained entry by lying to wife)). Defendant also denied giving permission to search his car (id. ¶ 8). He argues that the search of his home was fruitless and no contraband was found there (Docket No. 10, Def. Atty. Affirm. ¶ 7). He contends that the search of his rented car was without his consent and was not identified as a target for the search warrant. Four plastic bags containing cocaine mixture were found in the car (id. ¶ 17).
Defendant asserts standing for the search of the rental car since he (and his brother) rented it (id. ¶¶ 19, 15-16). The search warrant included in its ambit the search of any vehicles within the premises of 509*fn3 North Fourth Street, Olean (e.g., Docket No. 10, Attach. 1, Search Warrant, Search Warrant Application), without describing any particular vehicle (see Docket No. 10, Def. Atty. Affirm. ¶ 44). But defendant's car was parked three lots away from that address (Docket No. 16, Def. Aff. ¶ 9; Docket No. 10, Def. Atty. Affirm. ¶ 34).
Defendant moved to suppress this evidence obtained pursuant to the search warrant (Docket No. 10, Def. Atty. Affirm. ¶¶ 20, 21, 25, 26, 30-31, 42-44). The Government responded in upholding the validity of the search warrant (Docket No. 11, Gov't Response, at 7-10), while including (as part of the discovery furnished to defendant) excerpted portions of the grand jury transcript (id. Ex. A). The Report & Recommendation found that defendant had standing to contest the validity of the search warrant and the search of the rental car (Docket No. 23, Report at 5) and found that the search warrant for one premises did not include the rented car parked far from the stated address, denying a basis for the search and subsequent seizure (id. at 6-7). The Court also noted that "It is not clear from this record that defendant (or anyone else) consented to the search of the vehicle. On this basis, defendant's motion to suppress should be granted" (id. at 7 (emphasis in original)). The Report also called for a suppression hearing on defendant's statements (id.).
Defense Motion to Reconsider
In light of the favorable Report & Recommendation, defendant moved for reconsideration of the detention Order (Docket 24). He contends that the sole evidence against him would be suppressed upon the terms of the Report, his detention should be reconsidered (id. Def. Atty. Affirm. ¶¶ 5-8).
The Government opposes defendant's request to be released on his own recognizance or upon minimal bail, arguing that the Report was not an Order of the Court disposing of defendant's suppression motion (Docket No. 28, Gov't Atty. Aff. ¶¶ 3, 4). Since the Report has not been adopted by the District Court and a hearing is required for defendant's statements, there is no final Order of suppression to justify reconsidering defendant's detention (id. ¶ 6) and ...