United States District Court, S.D. New York
For Kowan Turner, also known as Sealed Defendant 1, Defendant: Mark B Gombiner, Sabrina P. Shroff, Federal Defenders of New York Inc. (NYC), New York, NY.
For USA, Plaintiff: Andrew James DeFilippis, United States Attorney Office, SDNY, New York, NY.
OPINION AND ORDER
Edgardo Ramos, J.
On January 28, 2014, a grand jury returned an indictment charging Kowan Turner with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The charge arose from a December 11, 2013 home visit conducted by officers of the New York Police Department's 46th Precinct in connection with a reported domestic violence incident. After a sequence of events that ultimately led to a search of Turner's basement apartment, the police discovered and seized three firearms and ammunition from a backpack found in his closet.
Turner has moved to suppress the firearms and ammunition, arguing that the police did not have a valid warrant or lawful consent for the searches of the apartment and the backpack. Turner has also moved to dismiss the indictment on the basis of allegedly false statements made by a police officer in the application for a search warrant that was issued for the apartment. The government has opposed both motions, arguing that the searches and seizure of the firearms were made pursuant to valid third-party consent and disavowing any reliance on the allegedly false statements in the search warrant application.
For the reasons discussed below, the defendant's motion to suppress is GRANTED and the defendant's motion to dismiss is DENIED.
a. Initial Interview of Erica McIntyre
On the morning of December 11, 2013, Erica McIntyre arrived at the 46th Precinct in the Bronx to report that she had been the victim of an incident of domestic violence at the hands of her boyfriend Kowan Turner that allegedly occurred in his apartment on the night of December 9, 2013. McIntyre first met with Officer Bienvenido Mena of the Domestic Violence Unit and described the incident to him. This interview lasted about 10-15 minutes. Apr. 16, 2014 Tr. 87:22 (Mena). Mena testified that she told him that when she left the apartment that morning she was done with Turner. Tr. 105:3 (Mena). McIntyre also told Mena that Turner had several guns in his apartment, so Mena referred the case to Officer Aliro Pellerano of the Anti-Crime Unit. Mar. 26, 2014 Tr. 13:9-12 (Pellerano).
At around 10:00 or 10:30 a.m., Pellerano, a member of the Anti-Crime Unit supervised by Sergeant Angel Gonzalez, questioned McIntyre concerning the firearms. Tr. 17:13-14 (Pellerano). The conversation lasted between 30 minutes and one hour. Tr. 17:3-4 (Pellerano). Pellerano's partners, Officers Michael Pomerantz and Cesar Gomez, were present throughout the interview. Sgt. Gonzalez joined the interview later. Tr. 17:9-11 (Pellerano).
Pellerano testified that McIntyre told the officers she had lived with Turner in the basement apartment at 2249 Morris Avenue in the Bronx for about two or three months. Tr. 44:1-2 (Pellerano). According to Pellerano, McIntyre said she had keys to the apartment but had returned them to Kowan Turner's father, Winfred Turner, on her way to the precinct. Tr. 44:14-15 (Pellerano). Pellerano asked McIntyre about the color and location of the firearms, and about the last time she had seen the firearms. Tr. 14:15-17 (Pellerano). McIntyre told the police the firearms were located in a dark blue book bag inside the closet of Turner's apartment. Tr. 14:17-19 (Pellerano). McIntyre told the officers that there were four guns in total. Tr. 14:19-20 (Pellerano). Pellerano testified that McIntyre said that she had heard Turner talking with his friends in the apartment about a robbery that had recently occurred in Washington Heights. Tr. 15:19-16:3 (Pellerano).
McIntyre also told the police that Turner had been handling the firearms on the night of December 9, 2013, and accidentally discharged a bullet that caused a hole in the bathroom floor. Tr. 16:7-9 (Pellerano).
Officer Gomez, who was present during the interview, testified that he could not recall how long McIntyre said she had been living in Turner's apartment, but that it had been longer than 30 days. Apr. 16, 2014 Tr. 11:14-15 (Gomez). According to Gomez, McIntyre stated that she had keys to the apartment but had given them to Winfred Turner. Tr. 11:21-23 (Gomez). Gomez did not remember whether McIntyre said that she had left any belongings in Turner's apartment. Tr. 12:1 (Gomez). Gomez stated that McIntyre informed the officers that the firearms were in Turner's custody and that he kept them in a black bag in the closet. Tr. 11:1, 9:15-17 (Gomez). According to Gomez, McIntyre told the police that Turner had used the guns to commit home invasions. Tr. 11:6-7 (Gomez). Gomez also recalled that McIntyre informed the officers that Turner " let a round go, he shot a round in the floor of the bathroom at one time." Tr. 9:18-19 (Gomez).
Officer Pomerantz, also present during the interview, testified that he questioned McIntyre " at length" about her living arrangements " because [he] wanted to make sure that she had like legal right to the apartment, like she had, you know, that she was actually living there." Apr. 16, 2014 Tr. 232:17-20 (Pomerantz). Specifically, according to Pomerantz, McIntyre informed the officers that she had been living in Turner's apartment for three or four months, and that she had been living in a shelter or halfway house before moving in with Turner. Tr. 231:5-8, 282:1-3 (Pomerantz). McIntyre described Turner's apartment as located in the basement of the Morris Avenue building and consisting of an open area with a bathroom and a closet. Tr. 231:13-14 (Pomerantz). Pomerantz testified that McIntyre told the officers that she used the shower in Winfred Turner's apartment almost daily because there was no working shower in the basement. Tr. 232:20-24 (Pomerantz). Pomerantz recalled that McIntyre said she had a key to the apartment but had given it to Winfred Turner that morning. Tr. 231:17-19 (Pomerantz). McIntyre informed the officers that she still had " clothes and some personal items" in the apartment. Tr. 231:22-23 (Pomerantz).
According to Pomerantz, McIntyre said she had seen guns in a backpack that was kept in the closet of Turner's apartment. Tr. 277:1-2 (Pomerantz). Pomerantz testified that the officers asked McIntyre " what she observed about the guns, how many guns there were, what their location was, why she had reason to believe that they were real firearms and not . . . imitation guns." Tr. 229:8-11 (Pomerantz). McIntyre told the officers that there were three or four guns, described them as " one larger revolver, and other pistols," and that they were kept in a black backpack. Tr. 229:13-18 (Pomerantz). McIntyre " said specifically that [the guns] did not belong to her." Tr. 285:10 (Pomerantz). Pomerantz recalled that she told the officers that Turner had used the guns in robberies or home invasions. Tr. 229:25-230:3 (Pomerantz). McIntyre also told the police that Turner had discharged one of the guns inside the bathroom in his apartment. Tr. 301:25 (Pomerantz).
Pellerano testified that McIntyre appeared to be very scared during the interview. " From what I got from her, . . . she was scared about what she was telling us, for the information that she was providing to us. And she was scared of the defendant." Tr. 16:18-21 (Pellerano). While
McIntyre told the officers that Turner strangled her during an argument, Pellerano acknowledged that he did not check if she had any bruises or marks. Tr. 16:24-25, 44:21-22 (Pellerano). Pomerantz similarly testified that he did not remember observing any physical injury and that he did not remember how she looked. Tr. 301:15, 301:20 (Pomerantz). Sgt. Gonzalez never asked the officers about any possible bruising. Apr. 16, 2014 Tr. 151:24 (Gonzalez).
In sum, at the time of the interview, the officers testified that McIntyre had been living with Turner until that morning for approximately the previous three months; had keys to the apartment but had relinquished them that morning to Winfred Turner; showered almost daily in Winfred Turner's apartment; and left behind " clothes and some personal items" in Kowan Turner's apartment. Tr. 44:1-2, 44:14-15 (Pellerano); Tr. 232:20-24, 231:22-23 (Pomerantz). As regards the guns, McIntyre informed the officers that:
o Turner kept three or four firearms in a backpack in his closet, Tr. 229:13-18 (Pomerantz); Tr. 9:15-17 (Gomez);
o The guns were in Turner's custody, Tr. 11:1 (Gomez);
o The guns did not belong to her, Tr. 285:10 (Pomerantz); and
o Turner had recently discharged one of the firearms in the bathroom of his apartment, causing a hole in the bathroom floor, Tr. 16:7-9 (Pellerano).
Despite the fact that Pomerantz said he explained the consent form to McIntyre " [i]n great detail" and discussed her living arrangements " at length," McIntyre did not say, or was not asked, whether she had any identification or other document confirming her residence in Turner's apartment; whether she paid rent or was on the lease of the apartment; whether she received mail at Turner's address; whether she had a key to the front door of the apartment building; or whether she kept any papers or documents at the apartment. Tr. 280:4-21, 280:25-281:5, 286:11, 232:17 (Pomerantz); Tr. 43:17 (Pellerano); Tr. 11:18 (Gomez). There was no testimony from the officers about whether McIntyre asked the police to accompany her back to the apartment to retrieve any belongings, or about whether McIntyre told the police that she had any means of accessing the apartment. With respect to the guns, McIntyre did not tell the officers, or was not asked, whether she kept any personal items in the closet;  or whether she kept any of her own belongings in the backpack containing the guns. Tr. 174:20 (Gonzalez); Tr. 285:17, 285:12-14 (Pomerantz).
b. Execution of McIntyre's Consent to Search
At the conclusion of the interview the officers testified that McIntyre agreed to sign a written consent to search Kowan Turner's apartment. The accounts of the four Anti-Crime Unit officers differ as to McIntyre's signing of a consent form.
According to Pomerantz, he personally printed the consent forms, filled out the description of the locations to be searched and McIntyre's personal information, and then asked her to read and sign the forms.
Tr. 234:1-9 (Pomerantz). Pomerantz spent " several minutes" explaining the consent form to McIntyre " [i]n great detail," and testified that McIntyre indicated that she understood what she was being asked to consent to and did not express any reservations about signing the form. Tr. 237:4, 286:11, 237:5-9 (Pomerantz). In contrast with the other officers' testimony, Pomerantz testified that McIntyre signed two consent forms, one for Kowan Turner's apartment and another for Winfred Turner's apartment. Tr. 234:13-14 (Pomerantz). Each form indicated that she gave consent to search the entirety of the two apartments. Tr. 236:2-6, 236:18-25 (Pomerantz). Pomerantz further testified that he made " several copies" of the forms. Tr. 237:19 (Pomerantz). He provided one or two copies to Pellerano, placed one extra copy on a filing cabinet in the office, and gave a copy of each consent form to McIntyre. Tr. 237:19-238:2 (Pomerantz). Ironically, Pomerantz testified that he made the extra copy and placed it on the filing cabinet " just in case something happened, because paperwork tends to go missing." Tr. 237:23-24 (Pomerantz). Pomerantz provided McIntyre with one copy of each form because she requested a copy, and he testified that he was " not sure what the policy is [on providing copies to third parties], but [he] didn't see any harm in giving it to her."  Tr. 237:25-238:2 (Pomerantz). Pomerantz testified that he provided the copies to Pellerano because Pellerano was the arresting officer. Tr. 294:2-6 (Pomerantz).
Pellerano testified that, at some point in the interview, he left the room, and it was apparently during this time that Pomerantz asked McIntyre to sign a consent form. Tr. 45:12-17 (Pellerano). Accordingly, Pellerano, did not witness McIntyre sign the form. Tr. 45:18-23 (Pellerano). Pellerano testified that Pomerantz subsequently showed him the consent form--which was in Pomerantz's hand--on the way out of the 46th Precinct to Turner's apartment. Tr. 54:3-6 (Pellerano). Pellerano said that Pomerantz told him he had left a copy of the form on a desk in the precinct, but that Pomerantz never handed him a copy. Tr. 533:8-22 (Pellerano).
Though Gomez was present throughout the interview, he could not recall whether it was Pomerantz or Pellerano who asked McIntyre to sign the form. Tr. 12:14-15 (Gomez). Gomez testified that he witnessed McIntyre sign the consent and that he saw the form afterward. Tr. 38:8-11 (Gomez). According to Gomez, McIntyre signed only one consent form. Tr. 38:14 (Gomez). Gomez recalled that the police provided McIntyre with a copy of the consent form and retained a copy for the precinct. Tr. 13:12-13 (Gomez).
Sgt. Gonzalez stated that he " probably did see the form," which actually requires a supervisor's signature. Tr. 139:25 (Gonzalez). Sgt. Gonzalez further stated that
he did not see anyone give McIntyre a consent form or copying a consent, and did not remember reading the form. Tr. 155:1-9 (Gonzalez). Sgt. Gonzalez had " no idea" how many consent forms McIntyre supposedly signed. Tr. 156:5 (Gonzalez).
However many copies of the forms there once may have been, the government now concedes that none presently exist. Both the police and McIntyre now assert that they are unable to locate their copies. Pellerano testified that Pomerantz told him at some point that he no longer had the consent form. Tr. 55:4 (Pellerano). According to Pellerano, he could not " recall the exact time, but one of the days that I needed it, we couldn't find it." Tr. 55:6-7 (Pellerano). " This happened after the arrest. I'm not sure about the date of when we were looking for it." Tr. 56:2-3 (Pellerano). Pomerantz testified that " Pellerano informed me that he didn't have it or maybe -- I'm pretty sure that's the way I found out." Tr. 294:22-24 (Pomerantz). The officers have been unable to locate either the original consent form or any copy. McIntyre's copy suffered a similarly mysterious fate: " I had the copies, but because I was homeless, I lost them. I lost them in the process of me being homeless. It wasn't done intentionally." Tr. 339:3-5 (McIntyre).
c. Encounter of Winfred Turner
After Pellerano spoke with Sgt. Gonzalez, the officers decided to do a " home visit" with a domestic violence officer at Turner's residence at 2249 Morris Avenue, which took place between 11:00 and 11:30 a.m. on December 11, 2013. Tr. 18:2-5, 18:18-19 (Pellerano). While each of the officers referred to it as a " home visit," they acknowledged that the purpose of the visit was to arrest Turner and seize the guns. According to Sgt. Gonzalez, the police were going to arrest Turner " for the domestic [violence incident] with other things in mind." Tr. 137:10-11 (Gonzalez). Pomerantz similarly testified that he believed he had a " professional police responsibility to recover the guns in Mr. Turner's apartment." Tr. 298:7-8 (Pomerantz).
The four members of the Anti-Crime Unit, Sgt. Gonzalez, Pellerano, Gomez, and Pomerantz, and Officer Mena of the Domestic Violence Unit all went to 2249 Morris Avenue. Tr. 19:6-7 (Pellerano). Despite allegedly having written consent, the officers did not first go to Turner's basement apartment. Instead, they gained access to Turner's residence through the superintendent, Winfred Turner. Tr. 18:24 (Pellerano). Here again, the accounts of the officers differ.
According to Pellerano, he and Gomez found Winfred Turner on the first floor and asked him to let them into the basement apartment. Tr. 18:24-19:3 (Pellerano). The police did not tell Winfred Turner
that McIntyre had provided written consent to enter the apartment. Tr. 48:15 (Pellerano). Pellerano testified that, after the officers told Winfred Turner that they needed to talk to his son, Winfred Turner agreed to get the key and open the door to his son's apartment. Tr. 48:25-49:9 (Pellerano). Gomez testified that he and Pellerano went to the lobby, " ran into the super," and asked for the keys to Kowan Turner's apartment. Tr. 15:20-23 (Gomez).
In contrast, Sgt. Gonzalez stated that the officers first attempted entry into Turner's apartment, and then Gomez alone went to find Winfred Turner when they were unable to enter. Tr. 140:5-7 (Gonzalez). In any event, these accounts are contradicted by Winfred Turner's testimony.
According to Winfred Turner, two police officers came to his door and said they needed to speak to his son in connection with a domestic violence case. Mar. 26, 2014 Tr. 106:14-16 (W. Turner). He told the police that his son was not currently present in his apartment. Tr. 106:18-19 (W. Turner). After one officer told Winfred Turner they knew McIntyre had left him a key to the apartment, the police said they wanted Winfred Turner to take them to his son's apartment. Tr. 106:19-22 (W. Turner). He objected. Tr. 106:24-107:5 (W. Turner). " Then the officer said something about calling the job," which Winfred Turner understood to mean that they would call his employer, the landlord. Tr. 107:5-6 (W. Turner). This led him to change his mind because, as the super, he is " not supposed to let anybody stay in the basement or anything like that. . . ...