The opinion of the court was delivered by: Spatt, District Judge.
The defendant in this case, James E. Wright, filed a motion to suppress any evidence obtained by government agents from the search of his residence and certain post-arrest statements obtained by government agents. In a prior decision, dated April 2, 2012, the Court denied the motion to suppress the post-arrest statements obtained by the government agents. With regard to the motion to suppress any evidence obtained by government agents from the search of the defendant's residence, the Court determined that a suppression hearing was necessary.
The suppression hearing was held on April 20, 2012, and April 23, 2012.
The first witness was Carl Spears, a cooperating witness. After being subpoenaed, Spears testified under the protection of a letter from the Government to his attorney, dated April 16, 2012 (Gov't Ex. 3500-CS-2); which reads as follows:
As we have discussed, your client, Carl Spears, has been subpoenaed to appear and give testimony at a suppression hearing in United States v. James Wright, 10-CR-504 (ADS), in the Eastern District of New York. You have indicated that Mr. Spears will refuse to testify on the basis of his privilege against self-incrimination unless he is given assurances that the testimony and/or information provided by him will not be used against him.
As we have discussed, your client is currently a target of an ongoing Grand Jury investigation. As such, it is hereby agreed that regarding his testimony at a suppression hearing in United States v. James Wright, 10-CR-504 (ADS), no testimony provided by Carl Spears or any information directly or indirectly derived from such testimony will be used against him by the Office in any criminal case, except a prosecution for perjury, giving a false statement, obstruction of justice, or contempt of court.
On May 17, 2008, the critical date in this hearing, Spears was arrested and searched. He had keys on his person to apartment E-81 at 1 Vanderbilt Drive in Mineola, New York. Spears told the detective questioning him that this was the key to the apartment of the defendant James E. Wright ("the defendant" or "Wright") and that there were drugs in the apartment. Spears stated that the defendant gave him the key to the apartment to use and he stayed in the apartment on numerous occasions.
Spears testified that in early February 2008, he was living in a shelter. In mid-February 2008, Spears met with the defendant's mother, and thereafter he met with the defendant himself. The defendant offered to allow Spears to stay at his apartment in Mineola. Spears then left the shelter and started living at Wright's apartment. He slept in the living room of the apartment for a week or two. At that time he did not have a key to the defendant's apartment. However, subsequently, Wright gave Spears a key to the apartment, and he also gave him the password to the alarm. It seems that the defendant used to lose his keys and when they needed to do "transactions", Spears had the key. The "transactions" were drug transactions for James Wright.
After the defendant gave him a key and the password to the Mineola apartment, Spears used the key to enter the apartment without Wright's presence "almost three to five times" between March of 2008 and May of 2008. When Spears went to the Wright apartment he always used the key given to him but did not have to use the password, because "it was off." (Tr. at 23).
Spears testified that he went to the defendant's apartment to get drugs so that he could make drug transactions. After doing a drug transaction, Spears returned to the defendant's apartment to "put the money there." (Tr. at 24). Between March and May 2008, Spears slept at the defendant's apartment in Mineola between five and ten times while the defendant was present in the apartment.
On May 17, 2008, Spears gave the Nassau Police a written statement, which is in evidence as Gov't Ex. 3500-CS-3. In this statement, Spears relates the following: "James had given me a key to his house so I could crash there or if he misplaced his key I would have it. I have slept at the house at least five times that I remember." Spears also stated that Wright gave him a password to the alarm system in the apartment.
On that same date, May 17, 2008, Carl Spears signed a Nassau County Police Department form entitled, "Consent Search of Premise". In this form, Spears stated that he was the "legal custodian" of apartment E81, at 1 Vanderbilt Drive, Mineola. Also, in this document form, Spears gave detectives of the Nassau County Police Department "permission to search the above mentioned premises." (Gov't Ex. 1). Spears expressly and voluntarily consented to the search of the Wright apartment by the Nassau Police Officers. He testified that he gave his consent freely and voluntarily and without any threat by the detectives.
The detectives drove with Spears to the apartment. On May 17, 2008, at about 9:11 pm, Spears used his key and opened the apartment door. The alarm went off. Spears had been present when the alarm was installed and he was given the password, "crossfire". Spears told the police officers the password was "crossfire" and the alarm was silenced. The word "crossfire" was also the name of the defendant's car.
On cross-examination, Spears admitted that there is "a couple of lies in that statement." (Tr. at 27). He was told by the Government attorneys that lying to the detectives was, in itself, a crime. However, Spears lied to the federal agents on several matters, not really relevant to the issues in this hearing.
Detective Patrick Carroll was in the Narcotics Squad of the Nassau County Police Department. In May of 2008, Carroll was assigned to the DEA Task Force. He had the dual role of an undercover agent making purchases of narcotics. Carroll had hundreds of hours of training by the DEA, the FBI and other drug trafficking agencies.
On May 17, 2008, he participated in the arrest of Carl Spears at a 7-Eleven on Hempstead Turnpike. The officers took Spears to the Narcotics Headquarters in Bethpage. He was debriefed and given his Miranda rights. Spears agreed to answer some questions and to cooperate. Spears told the officers that there were "more drugs and guns and money at a stash house." (Tr. at 43). The stash house Spears referred to was apartment E-81 at Vanderbilt Drive in Mineola. Spears told them that this was the apartment of James Wright and he said there were drugs in that apartment. He also told them that he had a key to the apartment and that he lived there at certain times. Spears showed the officers the key to the Wright apartment on his key ring, which was in his possession. Wright had given him the key to the apartment. He stayed there several nights and slept on the couch, because "they had a business relationship." (Tr. at 44). Spears signed a statement in which he stated that he slept at the Wright apartment at least five times.
Spears consented to a search of the Wright apartment E-81, Vanderbilt Drive in Mineola and signed the written consent on May 17, 2008 at 9:11 pm. Thereafter, on May 17th, Carroll, three other detectives and Spears went to the Wright apartment. They used the key that Spears had provided for them. They opened the door to the apartment; stated "Police"; and turned on the lights. The alarm in the apartment ...