United States District Court, W.D. New York
For James Henry McAuley, Jr., Defendant: James Scott Wolford, The Wolford Law Firm LLP, Rochester, NY.
For USA, Plaintiff: Brett A. Harvey, LEAD ATTORNEY, Bret A. Puscheck, U.S. Attorney's Office, Rochester, NY.
REPORT & RECOMMENDATION PRELIMINARY STATEMENT
MARIAN W. PAYSON, United States Magistrate Judge.
On January 29, 2014, this Court issued a Report and Recommendation concerning the pretrial motions filed by defendant Robert Moran, familiarity with which is assumed. (Docket # 467). The Court reserved as to one motion -- Moran's motion to suppress evidence seized from his residence on October 24, 2012 on the grounds that the execution of the search violated the Fourth Amendment -- pending further briefing and a further evidentiary hearing. (Id. at 32-34). The parties have made further submissions addressing the issues identified by the Court, and further evidentiary hearings have been conducted, followed by post-hearing submissions. (Docket ## 488, 494, 499, 514, 520, 559, 562). The issue is now ripe for determination.
The issue before the Court is whether the use of police-trained drug-sniffing and explosives-sniffing dogs exceeded the scope of the warrant and, if so, whether the proper remedy is blanket suppression of all the evidence seized from the premises. No dispute exists that the dog sniffs did not result in the seizure of any evidence. Rather, Moran's argument is that the evidence demonstrates that the executing agents planned to, and, in accordance with those plans, did use the canines during the search to search for evidence plainly outside the scope of the warrant. Moran contends that the search was thus transformed into a wide-ranging, general search, for which the proper remedy is suppression of all evidence seized from the residence.
A supplemental hearing was conducted on the pending suppression motion, at which the government offered testimony from Greg Kelly (" Kelly") and Kevin Miskell (" Miskell"), officers with the Rochester Police Department, and additional testimony from FBI Special Agent David Knight (" Knight"). (Docket ## 545, 546).
A. Testimony of Kelly
Kelly testified that he had been employed by the Rochester Police Department for the past twenty-nine years. (Tr.A 102). He currently holds the rank of Sergeant and works as the Patrol Supervisor of the canine unit. (Id.). In April 2011, he was also responsible for handling a canine, Giro, trained to detect odors of marijuana, cocaine, heroin, methamphetamine and ecstasy. (Tr.A 103-04).
On April 29, 2011, he and Giro were present for a pre-arranged briefing with federal agents prior to the execution of the search warrant for 15 Algonquin Terrace. (Tr.A 104, 112). According to Kelly, " [o]ur role, at the time, was to provide uniform support, and if there was a need for a canine, then we would be called in." (Tr.A 105). After the briefing, he and Giro, along with Miskell and his nitrate-detecting canine, went to the staging area near 15 Algonquin and waited to determine whether their " services . . . [would be] needed." (Tr.A 105, 114). Kelly explained:
Usually on this type of warrant, one always goes with the others, narcotics and guns going to -- we're usually sent on those types of situations where they think they may have a need to locate a gun or narcotics, so it's nothing out of the ordinary.
(Tr.A 114-15). Kelly was not told what evidence the warrant authorized the officers to search for and seize. (Tr.A 117).
At some point, Kelly was requested to take his dog Giro through the residence, although he could not remember who had made the request. (Tr.A 106). He recalled that he was advised that marijuana had already been discovered in an upstairs bedroom. (Tr.A 106, 125). He was also told there might be a marijuana " grow room" upstairs. (Tr.A 125). Before he allowed Giro to search, he and Miskell walked through the house and made a visual inspection to ensure that no materials were present that could pose a risk to the dogs. (Id.).
Following the walk-through, Kelly put Giro on a lead, brought him into the residence and directed him to search. (Tr.A 107-08). Giro searched the living room, the master bedroom and the attic. (Tr.A 108). Giro alerted in the master bedroom and the attic. (Tr.A 109). In the bedroom, he alerted to a dresser with closed drawers; a quantity of marijuana was visible on top of the dresser. (Tr.A 109, 129). Kelly did not seize anything or open the drawers. (Tr.A 110, 127). Giro also alerted in an empty room on the third floor in which Kelly himself smelled an odor of marijuana, although he did not observe any. (Tr.A 110). Kelly testified that neither he nor Giro moved any objects during Giro's search. (Tr.A 108).
Kelly testified that numerous agents were present in the house executing the warrant when Giro performed his search. (Tr.A 128-29). When he was done with his search, Kelly told Miskell that a gun had been found in the bedroom ...