Report & Recommendation
HUGH B. SCOTT, Magistrate Judge.
Before the Court are motions filed on behalf of defendant Marchello M. Gildersleeve (Docket Nos. 19 & 26).
Defendant, Marchello Gildersleeve ("Gildersleeve") was indicted on June 23, 2011 with illegal possession of a firearm and ammunition in violation of 18 U.S.C. §922(g) and §924(a)(2). The indictment also contains a forfeiture allegation regarding the firearm and ammunition. (Docket No. 1).
The defendant moves to suppress evidence and statements obtained on April 29, 2011 by members of the Niagara Falls Police Department pursuant to a search warrant issued by a Niagara Falls City Court Judge on April 21, 2011. (Docket No. 26 at §§ 2-3). The defendant asserts that there was insufficient probable cause to justify the search Gildersleeve or his apartment. The defendant further argues that if the search warrant is found to be invalid, any post-Miranda statements made by Gildersleeve must be suppressed as "fruit of the poisonous tree." (Docket No. 26 at §10, 13).
A suppression hearing was commenced on October 10, 2012. (Docket No. 33). Detective John Galie ["Galie"] of the Niagara Falls Police Department testified that on April 21, 2011, he submitted an application for a search warrant to Niagara Fall City Court Judge Diane Vitello. (Docket No. 33 at 5). The search warrant sought authority to search the person of Gildersleeve as well as a search of his premises at 527 24th Street, Apt. 1. (Defendant's Exhibit A). In support of the search warrant application, Galie stated that in February and March of 2011, he and other officers conducted an investigation into the illegal use, possession and sale of marijuana" at the defendant's apartment. He testified that he worked with confidential informant #26999 "(CI"). According to Galie's affidavit, the CI was "of known reliability and gave sworn testimony in the Niagara Falls City Court and also in Buffalo Federal Court, [and] this testimony resulted in different suspects being convicted of numerous crimes" and "narcotics seizures starting in 2009 and [continuing] until the present." (Defendant's Exhibit A, page 1). Galie's search warrant application further advised Judge Vitello that the CI stated that marijuana was being sold by Gildersleeve at his apartment at 527 24th Street; that Gildersleeve sometimes possesses weapons on his person and at his residence; that Gildersleeve is in possession of a black handgun that the CI "has observed on numerous occasions;" and that the CI "has personally observed a large quantity of marijuana and MDMA in the residence." (Defendant's Exhibit A, page 2 §§ A-G). Galie then advised Judge Vitello that he conducted an independent investigation in which Gildersleeve was observed "in front and in the rear of 527 24th Street Apt.#1" during "all hours during the day" through surveillance of the apartment. (Defendant's Exhibit A, page 2). Further, he stated that he checked with the New York State Department of Motor Vehicles, the Niagara Falls Police Department, and the United States Drug Enforcement Administration to confirm that Gildersleeve resides at 527 24th Street, Apt. #1. (Defendant's Exhibit A, page 2). Finally, Galie advised Judge Vitello that in March of 2011, a "controlled buy" was conducted in which the CI purchased marijuana. In this regard, Galie stated:
[Y]our writer's (sic) met with #26999 at a specific location in the city. At this specific location, #26999 was searched for money and/or contraband, none was located. #26999 was then instructed to contact Marchello M. Gildersleeve and arrange a marijuana purchase. After this was completed, #26999 was provided with a specific amount of money by Detective Galie via NID funds and then brought to the area of 527 24th Street Apt. #1, SBL #159.26-1-69. Writer's (sic) observed #26999 walk directley to and enter 527 24th Street Apt. #1. After a few minutes #26999 was observed walking back to a pre-arranged location. #26999 was kept in constant visual contact by the writers. At this pre-arranged location #26999 handed detective Galie a plastic bag that contained suspected marijuana and stated that this was bought directly from Marchello M. Gildersleeve, inside 527 24th Street Apt. #1. The CI was again checked for money and/or contraband, none was located. The marijuana was field tested with positive results for marijuana and secured. This substance was sent to the Niagra County Lab for further analysis.
(Defendant's Exhibit B pages 2-3). Galie testified that Judge Vitello signed the search warrant on that same day, April 21, 2011. (Docket No. 33 at 5-6; Defendant's Exhibit B). The search warrant authorizes the "immediate search" of Gildersleeve, as well as the search of the premises at 527 24th Street, Apt. 1. (Defendant's Exhibit B).
At the suppression hearing, Galie testified that on April 29, 2011, he received a phone call from Lt. Brian DelPorto who advised Galie that a patrol vehicle just "called out a warrant check on Marchello Gildersleeve." (Docket No. 33 at 7). Galie was told that Gildersleeve was standing at the corner of 24th Street and Ferry Street in Niagara Falls. He stated that he told DelPorto to "take him into custody" and that he would be there in minutes. (Docket No. 33 at 7). When Galie arrived at the corner of 24th and Ferry Streets, Gildersleeve was there with DelPorto and two other officers. (Docket No. 33 at 8). The defendant was cuffed in the front at this time. (Docket No. 33 at 13). Galie testified that he, Gildersleeve and the other officers proceeded to 527 24th Street, which was only about 20 to 30 yards away from the corner where Gildersleeve was stopped; and that he advised the defendant that he had a search warrant for the premises. Galie further testified that he then read Gildersleeve his Miranda warnings. Galie stated that he asked the defendant if he understood his rights, and that the defendant stated that he did understand. (Docket No. 33 at 9). According to Galie, they proceeding directly inside Gildersleeve's apartment and he turned to Gildersleeve and asked him: "Is there anything in the house that can get you in trouble?" (Docket No. 33 at 9). Galie testified that Gildersleeve responded: "I have a rifle in the closet." (Docket No. 33 at 10). Galie stated that he walked to the closet and found a.22 caliber pistol grip rifle which Gildersleeve acknowledged belonged to him, saying: "That's mine, that's all I've got." (Docket No. 33 at 10). A subsequent search revealed five.22 caliber rounds next to the rifle and other ammunition in a box in the crawl-space attic. (Docket No. 33 at 11). On cross-examination, Galie acknowledged that Gildersleeve's statement "I have a rifle in the closet" is contained in the 710.30 report (Government Exhibit 1) and that the statement to the effect that: "that's mine, that's all I got" is contained in a police report (Government Exhibit 2), but that neither statement is contained in both documents. (Docket No. 33 at 18).
The suppression hearing was continued on January 16, 2013 at the request of the defendant (Docket No. 34 at page 6) to obtain testimony regarding the specific location where the officers stopped the defendant prior to the execution of the search warrant. (Docket No. 36). Michael Corcoran, a police officer with the Niagara Falls Police Department, testified that he was driving on the 500 block of 24th Street towards Walnut Street on April 29, 2011 when he saw Gildersleeve walking down the east side of the road. (Docket No. 39 at 5). Corcoran stated that next door to 527 24th Street is an empty lot, and then two houses before you get to the corner of Ferry Avenue. (Docket No. 39 at 6). According to Corcoran, Gildersleeve was in the area of the empty lot and the second house from the corner - about 50 to 75 feet from 527 24th Street- when Corcoran first observed Gildersleeve. (Docket No. 39 at 6; designated as "O" on Exhibit F). Gildersleeve was walking away from the house at that time. (Docket No. 39 at 7). Corcoran testified that he radioed for a warrant check on Gildersleeve. Corcoran was initially informed that there were no active warrants for Gildersleeve, but was then asked to contact Lieutenant Del Porto immediately. (Docket No. 39 at 7). Corcoran called Del Porto who requested that if Corcoran saw Gildersleeve again, he should detain him because they were going to execute a search warrant. (Docket No. 39 at 8). Corcoran stated that by the time he spoke with Del Porto, he no longer saw Gildersleeve. (Docket No. 39 at 8). Approximately 30 minutes later, after responding to a couple of other calls, Corcoran was contacted by Del Porto who asked him to go back to the area near 527 24th Street. (Docket No. 39 at 8, 12). When he arrived at the 400 block of 24th Street, officers from the Narcotics unit arrived at the same time. (Docket No. 39 at 8). Corcoran stated he observed and stopped Gildersleeve near the corner of 24th Street and Ferry Avenue - approximately 100 to 200 feet from 527 24th Street. (Docket No. 39 at 9; designated as "X" on Exhibit F). Gildersleeve was not searched when he was stopped on corner of 24th Street and Ferry Avenue. (Docket No. 39 at 14). Gildersleeve was then placed in handcuffs by the Narcotics officers and walked back to 527 24th Street (Docket No. 39 at 9-10). Corcoran testified that he followed them over and stayed out in front of the house until he was "cleared" to respond to other calls. (Docket No. 39 at 10). Corcoran was eventually called back to 527 24th Street to transport Gildersleeve after he had been arrested. (Docket No. 39 at 10).
In a supplemental motion, the defendant argues that probable cause did not exist in support of the search warrant in this case because: (1) the application relied on a single controlled purchase which occurred approximately one month prior to the application; and (2) the confidential informant was not brought before the issuing judge for an assessment of credibility. (Docket No. 26 at page 5). The defendant does not present any authority in support of these arguments.
"[P]robable cause to search is demonstrated where the totality of circumstances indicates a fair probability that contraband or evidence of a crime will be found in a particular place.'" Walczyk v. Rio , 496 F.3d 139, 156 (2d Cir.2007) (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983)). Although the "existence of probable cause is a question of law for the court, " a reviewing court nevertheless must "accord considerable deference to the probable cause determination of the issuing magistrate." Id. at 157.
Here, the search warrant application advised the issuing judge of the following: (1) that the affiant was involved in an investigation into the defendant's "illegal use, possession and sale of marijuana;" (2) that a confidential informant had advised the affiant that Gildersleeve was selling drugs at 527 24th Street in Niagara Falls; (3) that the confidential informant personally observed Gildersleeve in possession of weapons; (4) that a controlled purchase in March of 2011 was conducted wherein the confidential informant purchased marijuana directly from Gildersleeve inside 527 24th Street; (5) that in April of 2011, the confidential informant advised the affiant that the informant had personally observed a large quantity of marijuana and MDMA in the defendant's residence; (6) the affiant conducted surveillance of 527 24th Street and observed Gildersleeve at that location during all ...