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United States v. Gildersleeve

United States District Court, Second Circuit

August 8, 2013

UNITED STATES,
v.
MARCHELLO M. GILDERSLEEVE, Defendant.

DECISION AND ORDER

RICHARD J. ARCARA, District Judge.

Introduction

Before the Court is defendant Marchello Gildersleeve's motion to suppress evidence obtained from a search warrant executed at 527 24th Street Niagara Falls, New York on April 29, 2011. (Dkt. No. 50) Also pending is the Government's request that the Court reconsider its prior Decision and Order adopting Magistrate Judge Hugh B. Scott's recommendation to suppress defendant's statements at the time of the search. (Dkt. No. 53)

For the reasons that follow, both the defendant's motion to suppress evidence and the Government's request for reconsideration are denied.

Relevant Facts and Prior Proceedings

On April 21, 2011, Detective John Galie of the Niagara Falls Police Department submitted an application for a search warrant to Niagara Falls City Court Judge Diane Vitello.[1] The application sought to search defendant's person and his residence at 527 24th Street, Apt. 1, Niagara Falls, New York. The application contained the following information: (1) Detective Galie was investigating defendant's "illegal use, possession and sale of marijuana"; (2) a confidential informant advised Galie that defendant was selling drugs at the residence; (3) the confidential informant personally observed defendant with weapons; (4) there was a controlled buy in March of 2011 where the confidential informant purchased marijuana from defendant at 527 24th Street; (5) in April 2011 the confidential informant advised Galie that he personally observed a large quantity of marijuana and MDMA at 527 24th Street; (6) Galie conducted surveillance at 527 24th Street and observed defendant there during all hours of the day and night; and (7) Galie checked Department of Motor Vehicles, United States Drug Enforcement Agency and Niagara Falls Police Department records to confirm that defendant lived at 527 24th Street.

While the confidential informant was not personally brought before Judge Vitello, the search warrant application stated the following:

[The informant] is of known reliability and gave sworn testimony in Niagara Falls City Court and also in Buffalo Federal Court, this testimony resulted in different suspects being convicted of numerous crimes. [The informant's] information has resulted in narcotics and money seizures starting in 2009 and this has continued until the present. The information in City Court...resulted in...warrants being issued for suspects with felony charges in the Niagara County District Attorney's Office.

(Dkt. No. 47, p. 2)[2] Judge Vitello signed the warrant, which authorized the "immediate search" of defendant's person as well as a search of 527 24th Street.

On April 29, 2011, a "warrant check" was "called out" on defendant. Defendant was found at the corner of 24th Street and Ferry Street in Niagara Falls, walking away from 527 24th Street. He was taken into custody by two officers and handcuffed. Detective Galie arrived and he and the other officers took the defendant to 527 24th Street, which was about 100 to 200 feet from where the defendant was initially found. Defendant was read his Miranda rights and told that the officers had a warrant to search the residence. The officers then asked defendant if there was anything inside that could get him in trouble and defendant responded, "I have a rifle in the closet." A search revealed a.22 caliber pistol gripe rifle in defendant's closet. When the officers found the rifle, defendant stated "that's mine, that's all I got."[3] Importantly, defendant's person was not searched when he was found on the corner of 24th Street and Ferry Street or when he was taken back to the residence.

Defendant was indicted on June 23, 2011 with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§922(g) and 924(a)(2). (Dkt. No. 1) The matter was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. §636(b)(1), for supervision of all pretrial proceedings. Defendant then moved to suppress the evidence recovered and statements obtained pursuant to the search of his residence. (Dkt. No. 26) A suppression hearing was held, before the Magistrate Judge, on October 10, 2012 and January 16, 2013.

In a Report and Recommendation dated April 19, 2013, Magistrate Judge Scott recommended granting in part and denying in part defendant's motion to suppress. (Dkt. No. 47) Specifically, the Magistrate recommended denying defendant's motion to suppress the evidence recovered at 527 24th Street. He noted that the warrant application contained detailed information indicating a fair probability that contraband would be found at defendant's residence, and that the Government was not required to bring the confidential informant before the issuing judge to establish probable cause. However, Magistrate Judge Scott recommended granting defendant's motion to suppress his statements, since the statements were made as a direct result of defendant's illegal detention. The Magistrate Judge reasoned that the Government failed to show that defendant posed an actual threat to the safe and efficient execution of the search warrant, and therefore the police improperly detained defendant when they seized him on the street corner and brought him to the residence where the search was being conducted.[4]

Neither the Government nor defendant filed objections to the April 19, 2013 Report and Recommendation. On May 7, 2013, this Court issued a Decision and Order adopting Magistrate Judge ...


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