United States District Court, S.D. New York
For Phillip Rutherford, Defendant: Robert M. Baum, LEAD ATTORNEY, Daniel George Habib, Federal Defenders of New York Inc. (NYC), New York, NY.
For USA, Plaintiff: Margaret Graham, LEAD ATTORNEY, United States Attorney Office, SDNY One Saint Andrew's Plaza, New York, NY.
Memorandum Opinion And Order
LAURA TAYLOR SWAIN, United States District Judge.
Defendant Phillip Rutherford (" Defendant" ) is charged, in the above-captioned indictment, with two counts of violating 18 U.S.C. § 922(g)(1), which prohibits the
possession of firearms by persons who previously have been convicted of felonies. Defendant has moved to suppress evidence found as a result of a search conducted pursuant to a warrant executed on June 6, 2014, and evidence found as a result of a subsequent purported consensual search of his apartment.
The Court held an evidentiary hearing on September 17, 2014. The Court has observed each witness carefully and has reviewed thoroughly the evidence and the post-hearing and other submissions of the parties. For the following reasons, Defendant's suppression motion is granted in its entirety.
Findings Of Fact
On June 3, 2014, Officer Jason Fernandez of the New York City Police Department (" NYPD" ) applied for a warrant to search Apartment 11A in a building located at 1481 Washington Avenue in the Bronx. The warrant application sought authorization to search for and seize " two semi-automatic firearms" which were alleged to have been " unlawfully possessed." (Fernandez Aff., docket entry no. 9-6, at 3.) Officer Fernandez submitted an affidavit with the application in which he proffered that a confidential informant (the " CI" ) had informed him that the CI had " observed two black semi-automatic firearms in the closet" of one of the bedrooms of Apartment 11A. (Fernandez Aff., docket entry no. 9-6, at 4.) Officer Fernandez further proffered that he had been told that the weapons were " inside a safe that was inside a black book bag resting on top of an unplugged television set." (Id.) Officer Fernandez' affidavit did not proffer any legal or factual basis for his assertion that the weapons were " unlawfully possessed."
Officer Fernandez swore out his warrant affidavit before Judge Dakota Ramseur of Bronx County Criminal Court. The CI, who also appeared before the judge, made unsworn statements to the judge that the CI had seen the two weapons in the apartment, and that the owner of the apartment, Taniqua Green, was " holding them for her boyfriend." (Fernandez Aff., docket entry no. 9-6, at 6.) There is no evidence that Officer Fernandez or the CI provided any further information regarding the criminal history or gun permit status of any of the apartment residents or of the boyfriend. (Rutherford Reply, Ex. A, docket entry no. 12-2, at 2.) Judge Ramseur issued a no-knock search warrant authorizing the NYPD to search Apartment 11A for " two semi automatic firearms" and " evidence tending to . . . connect persons found therein to the premises, to wit: personal papers and effects." (Search Warrant, docket entry no. 9-6.) Aside from a general statement that the items sought were " unlawfully possessed," the warrant did not identify the crime of which the weapons or connection documentation would serve as evidence.
On June 6, 2014, Officer Fendandez and other members of the NYPD executed the search warrant. Officer Fabio Checo led members of the Emergency Service Unit (" ESU" ) to Apartment 11A. ESU secured the apartment and handcuffed the three occupants - Defendant, Ms. Green, and Ms. Green's brother Michael. Officer Checo began to search the bedroom that the CI had described and found a book bag with a safe inside. (Sept. 17, 2014 Tr. (" Tr." ) 18:18-20.) Officer Checo asked members of the ESU to open the safe, and inside they found a gun. Officer Checo testified that, when Defendant saw the gun, he stated that it was not his. (Tr. 18:25 - 19:2.) The officers also found a piece of mail in the book ...