The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On May 31, 2011, Defendant Yuri Zelinsky ("Zelinsky" or "Defendant") moved to suppress documents and a cellular telephone ("cell phone") as illegally seized by the Federal Bureau of Investigation ("FBI") during his arrest on October 13, 2010 for conspiracy to commit mail fraud and healthcare fraud. (Arrest Warrant dated October 7, 2010.) Evidentiary hearings on the motion were held on August 25 and August 29, 2011 ("the hearing"). For the reasons that follow, the motion to suppress is denied.
On October 13, 2010, at approximately 6 a.m., agents from the FBI and other Federal and New York State agencies effectuated Defendant's arrest at his apartment.
At the hearing, the Government called as witnesses Mr. Joe Loscalzo, an employee of Defendant's building management company, who testified as to structural changes in Defendant's apartment from the original floor plan. Special Agent Alexey Abrahams of the FBI ("SA Abrahams") and Special Agent Stacy Nimmo of the FBI ("SA Nimmo") testified as to the facts and circumstances of Defendant's arrest. The Defense called no witnesses.
SA Abrahams, the lead agent in charge of Defendant's arrest, testified that on October 13, 2010, at approximately 5:15 a.m., a meeting was held to discuss "the tactics to be used for the arrest of Mr. Zelinsky, items to be aware of in terms of plain view seizure, FBI deadly force policy and the plan once we had Mr. Zelinsky in custody." (Suppression Hear'g Transcript ("Tr.") at 18.) SA Abrahams described the nature of the charges filed against the Defendant and "told all the agents participating in the arrest to be aware of cell phones and to be aware of medical billing documents and documents associated with BABS Medical." *fn1 (Id. at 18.)
Additionally, the agents discussed the conduct of a protective sweep of the apartment. SA Abrahams testified that he "instructed the other agents that once Mr. Zelinsky was in custody to conduct a protective sweep of the area." (Id. at 19.) SA Abrahams also stated that he was aware that Zelinsky has made an application to the New York Police Department to obtain a license for a firearm. (Id. at 17.) SA Abrahams was not aware of any other individuals residing in the apartment with Defendant. (Id. at 48.)
At 6 a.m., approximately six agents arrived at Zelinsky's apartment. (Id. at 19.) SA Abrahams testified that he could not recall whether he knocked or rang the bell on Defendant's door. (Id. at 49.) Defendant answered the door dressed in what appeared to be sleeping attire. (Id. at 20.) SA Abrahams and another member of his team placed the Defendant under arrest at a location just inside Defendant's front door. (Id. at 20, 50.) While SA Abrahams and the other agent were handcuffing Defendant; the other agents began to conduct a protective sweep. (Id. at 20-21.) SA Abrahams testified that from the place of arrest just inside the doorway, he could see the entrances to the two closest rooms which were approximately ten feet away.*fn2
SA Abrahams then asked the Defendant if there was a firearm in the residence and Defendant replied that there was a rifle in his bedroom closet. (Id. at 22-23.) SA Abrahams alerted the other agents to the location of the firearm. (Id. at 23.) The rifle was subsequently recovered by agents in the closet of the master bedroom. (Id. at 24.) Approximately one minute after the arrest, Defendant was escorted down the hall and placed on the couch in the living room. (Id. at 55.)
After Defendant was placed on the couch in the living room, agents went to the adjoining master bedroom to collect clothes to allow Defendant to get dressed for transport to the FBI office and subsequent arraignment. (Id. at 45.) Those agents alerted SA Abrahams to the presence of a cell phone on the nightstand of the master bedroom. (Id. at 43.) SA Abrahams then entered the master bedroom, observed, photographed, and seized the cell phone because Defendant had been captured on wiretaps speaking on a cell phone. (Id. at 46.)
SA Nimmo testified that after the Defendant was placed in handcuffs near the threshold of the apartment, the agents conducted the protective sweep and that she entered the second door on the left side of the hall, a bedroom which had been converted into a home office. (Id. at 85-89.) SA Nimmo stated that the distance from the apartment threshold to the home office was approximately "five to eight, five to ten feet." (Id. at 88.) SA Nimmo was not able to see into the entire room from the threshold of the home office door. (Id. at 91-92.)
QUESTION: Now, Special Agent Nimmo, for what reason did you enter into the bedroom that we have ...