United States District Court, E.D. New York
ORDER ON PRETRIAL MOTIONS
JACK B. WEINSTEIN, Senior District Judge.
Defendant Shakeel Wiggins is charged with five counts of possession of cocaine base with intent to distribute; unlawful use and possession of firearms; and felon in possession of a firearm and ammunition. He moves to suppress items recovered from the search of his apartment on October 4, 2013 on the following grounds: (1) there was no probable cause to issue the search warrant; and (2) the warrant, which did not specify an apartment number, was insufficiently particular because he lived in a multi-family residence.
An evidentiary hearing leads to the conclusion by a preponderance of the evidence that defendant's Fourth Amendment rights were violated because the warrant was insufficiently particular. The evidence recovered from the search is suppressed. See Franks v. Delaware, 438 U.S. 154, 156 (1987) ("In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.").
On September 25, 2013, New York City Police Detective Detective Nicholas Neve received information from a confidential informant ("CI") regarding an ongoing investigation of defendant's drug activities. The previous day, the CI met with defendant at the front door of defendant's house at 107-19 129th Street in Queens County, NY. Defendant told the CI that he had a "new toy" and showed the CI an assault rifle. See Search Warrant Aff. ¶ 2, Def.'s Notice of Pretrial Mot., Exh. A, ECF 12.
In preparation of a search warrant application for defendant's home, Detective Neve conducted various inquiries to verify the address and determine whether the building was a single or multi-occupancy structure. The certificate of occupancy for the house was issued for a single-occupancy residence. Tr. 5:8-25. By visual surveillance, he determined that the house had one address, one front door, one doorbell, and one mailbox. Hr'g Tr. 24:8-16 (Mar. 10-11, 2014). He did not notice the two electric meters located on the side of the house. Tr. 24:17-19. Police and Department of Motor Vehicles records listed defendant's address without an apartment number. Tr. 123:11-19. None of these records examined suggested that the building was a multi-family residence.
An additional inquiry by Detective Neve, however, did tell a different story. He ran an "Accurint" report which lists various people who have lived or received mail at an address over many years. See Accurint Report, Def.'s Ex. I. The report shows forty-four entries, some containing a single individual and others containing multiple individuals. The first nine results show individuals with the surname Khan. The report notes that: (1) this address is the probable current address for the Khan family listed in the first nine results; and (2) there is an active phone number at the address that is registered to the surname Khan. Defendant appears as the twelfth result. Included in the entry with his name is an active phone number registered to the surname Khan but no marking to show whether it is his probable current address.
With this information, Detective Neve applied for and received a warrant to search "a private three story house located at 107-18 129 Street which has a glass security door clearly marked 10718'". See Search Warrant Aff. and Search Warrant, Def.'s Notice of Pretrial Mot., Exh. A, ECF 12. On October 4, 2013, Detective Neve led a team of sixteen officers in the execution of the warrant. During the tactical briefing, Detective Neve informed the team that the premise was a single-family house. Tr. 76:7-17.
The officer responsible for gaining entry into the residence was Detective Myers. He entered the house through the unlocked front door. Inside the hallway, he encountered a locked door to his left, leading to the first floor apartment, and a locked door in front of him, leading to the second floor apartment. Tr. 78:4-14. These doors required a key of the type normally used in New York City to obtain entry to a private apartment in a multi-family residence. Tr. 91:13-14.
Detective Myers rammed open the door leading to the second story, and Detective Neve went up the staircase. Detective Neve saw a member of the Khan family and determined that she was not the suspect, so he completed a security sweep of the second floor apartment and went back downstairs. Tr. 3:13-31:2.
After Detective Neve entered the second story apartment, Detective Myers rammed open the door to the first floor apartment. When he entered the first floor apartment, he saw defendant running down the apartment's hallway carrying a "long" black bag. He drew his gun and ordered defendant to drop the bag. Defendant did so. Other officers then handcuffed defendant.
Detective Myers picked up the bag, opened it, and saw a rifle inside. Tr. 81:11-83:25. He also observed, in plain view, crack cocaine. Tr. 85:1-6. Detective Neve then returned from the second story and conducted a search of the first floor apartment. Inside a ...