United States District Court, W.D. New York
[Copyrighted Material Omitted]
For Larry Vincent Lawson, Defendant: Phillip Dabney, Jr., LEAD ATTORNEY, Buffalo, NY.
For USA, Plaintiff: Melissa M. Marangola, LEAD ATTORNEY, United States Attorney's Office, Buffalo, NY.
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE.
Defendant is charged in a three-count indictment with being a felon in possession of a firearm (18 U.S.C. § § 922(g)(1) and 924(a)(2)) and possession of a controlled substance containing cocaine (21 U.S.C. § 844(a)). (Dkt. No. 1) The charges arise from the seizure of a firearm, ammunition, cocaine and related paraphernalia following a search of defendant's apartment on March 29, 2010. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge Jeremiah J. McCarthy for supervision of all pretrial proceedings.
Defendant moved to suppress the contraband discovered in his apartment and statements he made to the police on the morning of the seizure. (Dkt. No. 13) Defendant argues that he did not give consent to search his apartment at 335 Summer Street, Buffalo, New York, and that the evidence and statements must be suppressed since their recovery violated his Fourth Amendment rights. Following an evidentiary hearing, Magistrate Judge McCarthy issued a Report and Recommendation granting defendant's motion to suppress the evidence and statements. (Dkt. No. 29)
The Government filed objections to the Report and Recommendation and defendant filed a response. (Dkt. Nos. 34 and 36) Oral argument was scheduled for July 18, 2013. Counsel for the Government appeared and presented an oral argument with respect to the Government's objections. Counsel for defendant failed to appear. The Court considered 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 McCarthy's Report and Recommendation, the parties' submissions, and hearing oral argument from the Government, the Court hereby adopts the findings set forth in Magistrate Judge McCarthy's Report and Recommendation.
Magistrate Judge McCarthy found, based upon the totality of the circumstances, that the Government failed to prove by a preponderance of the credible evidence that defendant consented to a search of his apartment by City of Buffalo police officers. In support of his findings, the Magistrate Judge noted that the officers' testimony at the hearing contradicted the Government's prior position and that the officers' testimony was " inherently improbable" . The Magistrate Judge also credited defendant's testimony that he never consented to a search of his apartment. With respect to the incriminating statements made by defendant, the Magistrate determined that the Government had not satisfied its burden in showing that the statements were sufficiently attenuated to remove the taint of the illegal search.
The Second Circuit has instructed that where a Magistrate Judge conducts an evidentiary hearing and makes credibility findings on disputed issues of fact, the district court will ordinarily accept those credibility findings. See Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (" [A] district judge should normally not reject a proposed finding of a magistrate judge that rests on a credibility finding without having the witness testify before the judge." ) ( quoting Cullen v. United States, 194 F.3d 401, ...