United States District Court, S.D. New York
For David Delva, aka: Sealed, Defendant: Jeffrey G. Pittell, Attorney At Law, Great Neck, NY.
MEMORANDUM DECISION & ORDER
KATHERINE B. FORREST, United States District Judge.
Before the Court is defendant David Delva's motion to suppress his cellular telephone (the " Cell Phone" ), which was seized by law enforcement officers on June 4, 2013. During an arrest of another individual, certain items were seized as evidence of a crime, and in plain view. Among the items seized were a gun and drugs belonging to Delva; he previously moved unsuccessfully to suppress that evidence. (See ECF Nos. 75, 92.)
On June 4, 2013, law enforcement entered the apartment located on the second floor of 832 South Oak Drive, Bronx, New York (the " Apartment" ) to arrest one of Delva's roommates, Gregory Accilien. Accilien was alleged to have participated in a brutal robbery and kidnapping. At the time of the arrest, the officers who entered the Apartment knew that one or more cell phones had been used during the robbery and kidnapping. Delva was later arrested for participation in the same offense and his trial on those charges is scheduled to commence on June 23, 2013.
On January 21, 2014, this Court held an evidentiary hearing with respect to seizure of the items from the Apartment. During that hearing, evidence relating to the seizure of two cell phones, one of which was later determined to belong to Delva, was adduced. Delva's counsel then amended his original motion to suppress (as to drugs and a loaded gun) to add a motion to suppress the Cell Phone. (See January 21, 2014 Hearing Transcript (" Tr." ) at 100.) The Court requested additional briefing on this additional motion. That briefing was fully submitted on February 26, 2014. (ECF Nos. 95, 102, 114.)
There is no factual dispute that the Cell Phone is Delva's. Further, defendant has proffered no evidence, nor elicited any evidence on cross-examination, that at the time it was seized, the Cell Phone was not in plain view in a bedroom that had been occupied the previous night by Accilien (the robbery and kidnapping suspect).
The Government does not base the legality of its seizure of the Cell Phone on the receipt of consent to search the bedroom. According to the Government, during the course of legitimate efforts incidental to a protective sweep that was itself incident to the arrest of Accilien, law enforcement officers (" Officers" ) saw drugs, a gun, and the Cell Phone in plain view. It is undisputed that the Officers saw the drugs and gun prior to seeing the Cell Phone.
Delva's arguments on this motion are the same as those on his prior motion with respect to the gun and drugs: (1) the Officers' had no need or right to enter the Apartment; (2) once in the Apartment, the Officers had no right to enter the bedroom
which the defendant shared with others; (3) that the Cell Phone, which was recovered in the bedroom, was not in plain view; and (4) even if the Cell Phone was in plain view, it was not in and of itself contraband, evidence of a crime, or associated with evidence of a crime.
At the evidentiary hearing on January 21, 2014, the Government called Special Agent John Reynolds of the Federal Bureau of Investigation (" FBI" ) who was the lead investigator with respect to this robbery and kidnapping, and Detective Ellis Deloren of the New York Police Department (" NYPD" ), who was the lead detective in that investigation. The only testimony elicited about the location and seizure of the two cell phones was from Special Agent Reynolds. (Deloren knew that cell phones had been seized but no more than that.) The defendant called one of his other roommates in the Apartment as of the date of the search, Mackenzie Bruno. Bruno had also been an occupant of the bedroom the previous night and may have had information regarding the cell phones. Bruno presented no testimony regarding the cell phones.
For the reasons set forth below, Delva's motion to suppress is DENIED.
The facts relevant to resolution of this motion were established at the evidentiary hearing on January 21, 2014. They are recited in this Court's January 27, 2014 decision on defendant Delva's first motion to suppress (see Decision at 3-8, ECF No. 92), and are incorporated herein by reference. Only ...