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United States v. Smith

United States District Court, Second Circuit

October 11, 2013

UNITED STATES OF AMERICA,
v.
KEVIN PATRICK SMITH, Defendants.

Hadassa Waxman, Esq., States Attorney's Office, Southern District of New York, New York, NY, Attorney for the Government.

Louis Freeman, New York, NY, Attorney for Defendant.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

Presently before the Court is defendant's motion to suppress items seized from his gym bag, storage locker, and apartment, and defendant's motions in limine to preclude the government from introducing in its case-in-chief certain weapons and weapons-related paraphernalia seized from the storage locker, various items seized from his apartment, and evidence of defendant's prior convictions (ECF No. 8). For the reasons set forth below, we: (1) deny the motion to suppress the items seized from the gym bag, storage locker, and apartment; (2) deny the motion to preclude the items seized from the storage locker as it is directed to the firearms, ammunition, and ski masks, [1] but grant the motion with respect to the other items; (3) grant the motion to preclude the items seized from defendant's apartment except for the note that says "rob bank"; and (4) grant defendant's motion to preclude evidence of his prior convictions during the government's case-in-chief, except to establish, in the absence of a stipulation, the "felony" element of Count Two of the superseding indictment.

BACKGROUND

Defendant was arrested on July 1, 2013 as he was exiting his apartment in Manhattan. At the time of his arrest, he was carrying a bag which contained, among other things, a black t-shirt, three pairs of gloves, and a key marked "888 storage." According to the government, defendant was on his way to a storage facility in the Bronx called Extra Space Storage to retrieve a.44 magnum revolver, which he planned to use to rob a Wells Fargo Bank in New Paltz, New York.

The government's information comes from evidence obtained by a confidential source ("CS") who met with defendant to discuss the planned robbery on four occasions, two of which were recorded. Affidavits submitted by an FBI agent reveal that defendant first approached the CS on June 26, 2013 to seek his participation in the robbery, and over the course of the next four days, defendant devised the following plan: at 8:00 a.m. on July 1, 2013, a driver would pick up defendant at his apartment in Manhattan and take him to the CS's location; defendant would bring a bag, ski mask, and gloves; defendant and the CS would then drive to Extra Space Storage, located at 330 Bruckner Blvd. in the Bronx, where defendant would retrieve a.44 magnum revolver from his storage locker; finally, defendant and the CS would drive to the Wells Fargo Bank in New Paltz, defendant would rob the bank with his gun, and they would carry the cash to the car.

Later on the day of defendant's arrest, the government obtained a warrant to search his apartment and storage locker. FBI agents recovered from defendant's apartment, among other items, a ski mask, brass knuckles, a police radio, and a handwritten note that said, "rob bank." From the storage locker, agents recovered, inter alia, five firearms, one of which was a.44 magnum revolver, ammunition, and ski masks.

On or about July 15, 2013, defendant was indicted by a grand jury for attempting to rob the Wells Fargo Bank. On or about September 4, 2013, a grand jury returned a two-count superseding indictment. Count One of the superseding indictment charges defendant with attempted bank robbery. Count Two charges defendant with possessing a firearm, specifically a.44 magnum revolver, after having been convicted of a felony. The government has indicated that it will soon seek a second superseding indictment expanding Count Two to include the four other firearms recovered from the storage locker.

In the motions before the Court, defendant argues that the contents of his gym bag, storage locker, and apartment should be suppressed because they were unreasonably searched in violation of the Fourth Amendment. In addition, he contends that items seized from his apartment and storage locker should be precluded in the government's case-in-chief under Rule 403 because their probative value is substantially outweighed by the risk of unfair prejudice.[2] Finally, defendant asserts that the government should be precluded from introducing evidence of his prior convictions in its case-in-chief pursuant to Rule 404(b).

DISCUSSION

A. The seizure of items from defendant's gym bag, storage locker, and apartment did not violate the Fourth Amendment.

The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. "The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno , 500 U.S. 248, 250 (1991). It is well established that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant , 556 U.S. 332, 338 (2009) (citation omitted).

One such exception to the warrant requirement is an inventory search, that is, a search conducted to inventory personal property taken into police custody following a lawful arrest. Colorado v. Bertine , 479 U.S. 367, 371 (1987). Inventory searches serve "(1) to protect the owner's property while it is in police custody; (2) to protect the police against spurious claims of lost or stolen property; and (3) to protect the police from potential danger." United States v. Lopez , 547 F.3d 364, 369 (2d Cir. 2008), cert. denied, 556 U.S. 1114 (2009). Although inventory searches are usually conducted at police stations, the Fourth Amendment does not require that they be conducted at any particular location. See United States v. Mendez , 315 F.3d 132, 137 n.3 (2002). "An inventory search pursuant to standardized ...


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