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United States v. Fadul

United States District Court, S.D. New York

April 18, 2014

JUDITH P. FADUL et al., Defendants

As Amended April 21, 2014.

For Judith P. Fadul, also known as Sealed Defendant 1, Defendant: Jonathan Andrew Marvinny, Federal Defenders of New York Inc. (NYC), New York, NY.

For Kenneth Garcia, also known as Alex Garcia, also known as David Ortiz, also known as Xavier Cortes, Defendant: Florian Miedel, Miedel & Mysliwiec, New York, NY.

For Yasmin Delarosa, Defendant: Daniel Steven Parker, Parker & Carmody, LLP, New York, NY.

For Rebecca Marie Lawrence, Defendant: John C. Meringolo, Meringolo & Associates, P.C., New York, NY.

For Paul Edmund Brown, Defendant: Matthew Lester Mazur, Michael J. Gilbert, Dechert, LLP (NYC), New York, NY.

For Brandy Keate Mitchell, Defendant: Ira D London, LEAD ATTORNEY, Law Office of Ira D. London (NYC), New York, NY.

For Jesus Mena, also known as Christopher Mena, Defendant: David Touger, Peluso & Touger, New York, NY.

For Jayro Custodio, also known as Jay, also known as Jatro Custodio, Defendant: Michael Sangyun Kim, Rebecca Grace Mangold, Kobre & Kim LLP, New York, NY.

For Brian Garcia, also known as B-Boy, Defendant: Joseph Victor Sorrentino, Joseph V. Sorrentino PLLC, Staten Island, NY; Peter J. Batalla, PRO HAC VICE, Bronx, NY.

For USA, Plaintiff: Amy Garzon, Edward B. Diskant, United States Attorney Office, SDNY, New York, NY.

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JESSE M. FURMAN, United States District Judge.

Defendants Judith Fadul, Kenneth Garcia, and Yasmin Delarosa, charged with drug, gun, and counterfeiting offenses in a six-count superseding indictment (Docket No. 62), move to suppress evidence seized during a search of Fadul's apartment. Their motion implicates an issue of Fourth Amendment law that has divided the Courts of Appeals and remains unsettled in the Second Circuit -- namely, whether, and under what circumstances, law enforcement officers may engage in a warrantless " protective sweep" of a home where they initially gained entry to that home by consent. The issue is a difficult one because it requires balancing competing concerns. On the one hand, allowing law enforcement officers to engage in a warrantless protective sweep where they have entered in the first instance based on consent might enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search. It also threatens to undermine the well-established principle that a person can limit the scope of his or her consent to search to a particular area. On the other hand, categorically prohibiting law enforcement officers from taking limited steps to ensure their safety if they have entered a home based on consent would undoubtedly jeopardize the safety of officers and, by extension, cause some officers to forgo consent entries altogether.

Balancing those concerns, the Court holds that, under certain circumstances, law enforcement officers may engage in a protective sweep where they gained entry through consent in the first instance. But the Court also concludes that, in the circumstances presented in this case, the protective sweep at issue was unlawful. Accordingly, and for the reasons stated below, Defendants' motion to suppress is granted.


A. Background

The instant case arises from a search of Fadul's apartment, Apartment 4K at 2825 Claflin Avenue in the Bronx, New York (the " Apartment" ), by members of the New York City Police Department (" NYPD" ) on or about September 10, 2012. As discussed in detail below, the circumstances of the police officers' initial entry into the Apartment and subsequent search are heavily disputed. But there is no dispute that, once inside, the police officers observed and ultimately seized a firearm, drugs, drug paraphernalia, counterfeit United States currency, and counterfeiting equipment. On the night of the search, everyone in the Apartment -- including Fadul, Garcia, and Delarosa -- was arrested by the NYPD. On January 30, 2013, Fadul was re-arrested by federal agents and subsequently charged with two counts of counterfeiting.

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(Docket No. 7).[1] On March 25, 2013, Garcia was re-arrested by federal agents and subsequently charged, in a different indictment, with one count of unlawful possession of a firearm by a felon. (13 Cr. 257, Docket No. 6). Finally, to the extent relevant here, on July 2, 2013, Delarosa was re-arrested by federal agents and charged (along with Fadul and Garcia) with one count of conspiracy to distribute or possess with intent to distribute controlled substances. (Docket No. 18). (On or about November 7, 2013, the grand jury returned a superseding indictment charging six additional defendants. They are not involved in the present motion.)

For reasons that will become clear, the early procedural history of this case is important. As noted, Fadul was the first of the three moving Defendants to be charged federally. The Honorable Laura Taylor Swain -- who was initially assigned Fadul's case -- set April 25, 2013, as a deadline for the filing of defense motions and scheduled a pretrial conference for April 23, 2013. (March 6, 2013 Minute Entry; Docket No. 10). On April 23, 2013, at the request of the parties, Judge Swain extended Fadul's deadline to file motions until July 2, 2013. (Apr. 23, 2013 Tr. at 5). Shortly thereafter, this Court -- which was initially assigned Garcia's case -- set June 5, 2013, as the deadline for Garcia to file any motions. (13 Cr. 257, May 22, 2013 Oral Order). On June 4, 2013, Garcia filed a motion to suppress evidence, including the evidence seized in the search of the Apartment on September 10, 2012. (13 Cr. 257, Docket Nos. 8-10). In support of the motion, Garcia submitted a sworn affidavit from himself and a sworn affidavit from Delarosa. (13 Cr. 257, Docket No. 9-1, Exs. E & G). In the latter, dated May 31, 2013, Delarosa stated that the officers had " pushed" their way into the Apartment without a warrant or consent. (13 Cr. 257, Docket No. 9-1, Ex. E, ¶ ¶ 4-5).

Based on the Government's concession that an evidentiary hearing was necessary to resolve Garcia's motion, the Court scheduled a hearing for July 2, 2013. (13 Cr. 257, June 12, 2013 Minute Entry). On June 21, 2013, in advance of the hearing, the Government filed its memorandum in opposition to Garcia's motion. (13 Cr. 257, Docket No. 15). In that memorandum, the Government argued that Delarosa consented to the police officers' initial entry into the Apartment. (13 Cr. 257, Docket No. 15, at 3). In addition, the Government first advanced the argument it presses here: that, after entering Apartment with Delarosa's consent, the police officers engaged in a lawful protective sweep based, in part, on the fact that a male occupant of the apartment " moved toward the back of [the apartment]" and tried to close the door to one of the bedrooms. (13 Cr. 257, Docket No. 15, at 3; see also id. at 10-12).

Just before the evidentiary hearing was to take place in Garcia's case, the Government obtained a superseding indictment in Fadul's case charging her, Garcia, and Delarosa with drug, gun, and counterfeitting offenses. (Docket No. 18). The Government then sought and obtained dismissal of the separate indictment against Garcia alone. (13 Cr. 257, Docket No. 21). In the meantime, on July 1, 2013, Fadul filed her own motion to suppress evidence, including the evidence seized in the search of the Apartment on September 10, 2012. (Docket Nos. 14-16; see also Docket No. 44 (renewing the motion)). That motion

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was supported by sworn declarations from Delarosa (the same declaration that was previously submitted in support of Garcia's motion in 13 Cr. 257), and Fadul herself, dated April 23, 2013 (the date of the earlier pretrial conference before Judge Swain, two days before the first motion deadline). (Docket No. 15-1; see also 13 Cr. 257, Docket No. 9-1). To the extent relevant here, Fadul alleged that she, Garcia, and her fifteen-year-old son, R.D.,[2] had gone to the grocery store on the night of September 10, 2012, and returned home to find the police " were already searching" the Apartment. (Docket No. 15-1, ¶ 4). Thereafter, Garcia and Delarosa filed their own motions seeking to suppress the evidence seized during the search of the Apartment as well. (Docket Nos. 47, 57).[3]

B. The Hearing

The Court held a three-day evidentiary hearing in connection with Defendants' motions to suppress beginning on February 3, 2014. With respect to the issue addressed in this Opinion and Order, the Government called three witnesses: Detective Michael Smyth, Sergeant Patricio Ovando, and Detective David Rojas, all from the NYPD. Defendants called one witness, Celeste Crespo, Fadul's daughter and Delarosa's sister.

As will become clear, the parties' versions of what happened on the night of September 10, 2012, differed dramatically. In the Government's version, after receiving an anonymous complaint about marijuana smoking on the premises, the officers requested permission to enter the Apartment, and Delarosa granted it, either explicitly by saying " ok" or implicitly by opening the door and allowed the officers to enter. Inside the Apartment, the officers found themselves outnumbered, with at least one person unaccounted for in the back of the Apartment, and a strong odor of marijuana. On top of that, one occupant of the Apartment -- Fadul's son, R.D. -- immediately headed from the entrance area toward a bedroom in the rear of the Apartment, refused to stop despite repeated orders to do so, and tried to close the door to the bedroom when an officer confronted him there. A subsequent search of that bedroom resulted in the seizure of the gun, drugs, drug paraphernalia, and counterfeiting equipment.

In Defendants' version, by contrast, the officers requested permission to enter but, when repeatedly asked if they had a warrant, forced their way into the Apartment. According to Defendants, no one in the Apartment was smoking marijuana that night and, even more significant, no one moved in the direction of the first bedroom. In fact, Defendants contend that R.D. -- the person alleged by the police to have moved toward the bedroom -- was not even present in the Apartment when the police arrived, as he had gone grocery shopping with Fadul and Garcia. Defendants maintain that, immediately upon entering and without any reason for suspicion beyond a months' old complaint about marijuana smoking on the premises, the

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officers engaged in a full-blown search of the Apartment, yielding the gun and other contraband.

The Court will summarize each party's version of the events in turn.

1. The Government's Case

The circumstances that led to the police officers' visit to the Apartment are not seriously in dispute. According to the Government's witnesses, the case started with a civilian complaint, received on July 19, 2012, that one or more people were smoking marijuana in the Apartment every night from 11 p.m. to 4 a.m. (Tr. 87, 243, 392-93). Detective Rojas, who was assigned to investigate the complaint, ran database checks suggesting that, at least as of June 2012, Fadul, Delarosa, and Crespo lived in the Apartment. (Tr. 155, 392, 399). Then, on September 10, 2012, at approximately 11 p.m. a field team of four officers dressed in plain clothes went to visit the Apartment: Sergeant Ovando, Detective Smyth, Detective Rojas, and Detective Gregory Larsen. (Tr. 86-87, 90). That field team had worked together, " day in and day out," for two years; Sergeant Ovando was the team leader. (Tr. 146-47, 329-30). According to the officers who testified at the hearing, they visited the Apartment only to issue a " friendly warning" about the use of marijuana -- that is, merely to speak to the occupants about the complaint -- and did not intend to arrest anyone. (Tr. 243; see Tr. 87, 194, 196). They did, however, bring a prisoner van with them (allegedly because of other visits planned for the same night). (Tr. 277, 330-31).

The officers took the elevator to the fourth floor of 2825 Claflin Avenue and proceeded toward the Apartment, which was located at the end of the hall, next to a staircase. (Tr. 195, 297, 394). The hallway was empty except for Crespo, her boyfriend Juan Carlos Custodio, and their three-year-old daughter, who were walking toward the elevator. (Tr. 89, 195, 296, 424). Who said what at that point is somewhat unclear, but ultimately immaterial. According to Detectives Smyth and Rojas, one of the officers asked Crespo whether she lived in the building and she responded that she did, specifically in the Apartment. (Tr. 89, 157, 394). Sergeant Ovando testified that an officer asked Crespo if she was responsible for the Apartment and that she indicated that her mother was; he did not recall Crespo saying that she herself lived in the Apartment. (Tr. 246-47, 333). In any event, the officers advised Crespo, in sum and substance, that they were there about a complaint and asked if they could discuss it in the Apartment rather than the hallway to avoid " air[ing] their business" to neighbors. (Tr. 90, 158). Crespo said " fine," and then walked with them to the doorway of the Apartment. (Tr. 90, 158). Sergeant Ovando testified that he could smell marijuana in the hallway and that the smell grew stronger as he approached the door. (Tr. 248). Detective Smyth, however, testified that he did not smell any marijuana in the hallway. (Tr. 195-96).

Whether or not Crespo said she lived in the Apartment, she did not open the door with a key but rather knocked on the door with the police officers behind her. (Tr. 91, 248, 347). According to the officers who testified, a woman, later identified as Delarosa, opened the door and stood with the door ajar. (Tr. 91-92, 248-49, 397). Here again, the officers' accounts of what happened next vary. Detective Smyth testified that Crespo told Delarosa that the police were there to speak with them and that Delarosa then " gave a ...

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