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United States v. Marchese

United States District Court, W.D. New York

August 19, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH G. MARCHESE, Defendant

Page 224

For Joseph G. Marchese, Defendant: Kimberly A. Schechter, LEAD ATTORNEY, Federal Public Defender Office, Buffalo, NY.

For USA, Plaintiff: Thomas S. Duszkiewicz, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

OPINION

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE.

Page 225

DECISION AND ORDER

Defendant is charged in a two-count indictment with unlawful manufacture of 50 or more marijuana plants (21 U.S.C. § § 841(a)(1) and (b)(1)(C)) and unlawful use of premises for the purpose of manufacturing, distributing and using marijuana (21 U.S.C. § 856(a)(1)). (Dkt. No. 1) The charges arise from the discovery of over 60 marijuana plants as well as various devices and materials for growing marijuana at defendant's residence in Lackawanna, New York on May 3, 2006. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge H. Kenneth Schroeder, Jr., for supervision of all pretrial proceedings.

Defendant moved to suppress the evidence found at his home as well as statements he made to law enforcement on the night of his arrest. (Dkt. No. 6) Defendant

Page 226

argued that officers entered his home without consent or a search warrant in violation of his Fourth Amendment rights. Id . Defendant also moved to dismiss the indictment due to the Government's delay in bringing the action. Id . Following a three-day suppression hearing and post-hearing submissions by both parties, Magistrate Judge Schroeder issued a Report and Recommendation granting defendant's motion to suppress the evidence and statements but denying the motion to dismiss the indictment. (Dkt. No. 20)

The Government filed objections to the portion of the Report and Recommendation granting defendant's motion to suppress evidence and statements.[1] (Dkt. No. 24) Defendant submitted a response (Dkt. No. 25), the Government submitted a reply (Dkt. No. 26), and oral argument was held on July 11, 2013. At that time, this Court requested additional briefing from the parties. Supplemental briefing was submitted by both the Government and defendant on July 19, 2013 and the Court deemed the matter submitted.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. After reviewing Magistrate Judge Schroeder's Report and Recommendation, the submissions, including the supplemental briefing, and hearing oral argument from the parties, the Court adopts the findings set forth in Magistrate Judge Schroeder's Report and Recommendation in their entirety.

The Fourth Amendment protects an individual's privacy in a variety of settings and " [i]n none is the zone more clearly defined than when bounded by the unambiguous dimensions of an individual's home." Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Thus, it is a basic principle of Fourth Amendment law that " searches and seizures inside a home without a warrant are presumptively unreasonable." Id . One of the specifically established exceptions to the warrant requirement of the Fourth Amendment is that a search is conducted pursuant to an occupant's consent, provided that consent is given voluntarily. United States v. Odeh, 552 F.3d 157 (2d. Cir. 2008); accord Schneckloth v. Bustamonte, 412 U.S. 218, 219-20, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Here, the Magistrate Judge found that defendant's consent to enter his home was not a product of free and unrestrained choice but rather a mere acquiescence to a show of authority. He credited witness James Lake and defendant's testimony that upon arriving at defendant's residence on the night in question, officers banged on the door, yelled at defendant to be let in, and threatened to break down the door if defendant refused them entry. The Magistrate also credited defendant's testimony that he expressly told the officers that they could not come in, and that ...


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