Opinion
03-CR-092 (LEK).
February 10, 2004
I. INTRODUCTION
On March 5, 2003, Edward Hartery ("Defendant" or "Hartery") was indicted and charged with violating 18 U.S.C. § 922(g)(1). Presently before the Court is Defendant's omnibus motion in which he requests to suppress evidence seized during the search of his home and the vehicle he was driving. A hearing on this motion was held on January 16, 2004.
At issue is whether the evidence taken in the March 4, 2003 search of the Hartery home and vehicle that he was driving should be suppressed. Defendant contends that the warrant issued by Magistrate Judge David R. Homer on February 28, 2003 was lacking in probable cause because (1) the affidavit of Agent Kessler did not allow the Judge to assess the reliability of the confidential informant ("CI"), (2) the affidavit fails to demonstrate that Defendant exercised dominion or control over the firearms at issue, (3) the information provided by the CI was stale, and (4) a Franks v. Delaware, 438 U.S. 154 (1978), hearing must be held to ascertain whether agents knew that the firearms in Defendant's home were purchased and owned by Defendant's girlfriend with whom he resides. Alternatively, Defendant requests blanket suppression of all the evidence obtained because the search amounted to a general search in violation of the warrant's terms. The Defendant also argues that the arrest and search of the vehicle that Defendant was driving on March 4, 2003 violated his constitutional rights. For the reasons set forth below, the motion is denied in part and granted in part.
II. FACTS
Defendant is a prohibited person under 18 U.S.C. § 922(g)(1) because of two prior felony convictions. § 922(g)(1) makes it unlawful for him to "ship or transport any firearm or ammunition in interstate or foreign commerce." On February 28, 2003 Magistrate Judge Homer issued a warrant that permitted federal authorities to search the Hartery residence for "firearms, specifically rifles, as well as ammunition, cleaning equipment, photographs of Edward Hartery with firearms, and receipts for purchases of firearms or firearms-related paraphenalia [sic]".
The warrant issued based on the February 28, 2003 affidavit of FBI Special Agent Charles Kessler. Agent Kessler's affidavit swore that another Agent, Gregory Haggerty, had received information from a CI who had provided "reliable information related to criminal activity on multiple occasions over the past three years." (Kessler Aff., at ¶ 4). The affidavit stated that the CI had been in Hartery's residence on multiple occasions and provided details of the home's interior and "knows that the garage attached to Hartery's residence has been converted to a heated living area." (Kessler Aff., at ¶ 5). The information that the garage was a living area proved to be false. (Dkt. No. 13, at 6-7). However, as stated by Defense counsel at the hearing, the garage was, in fact, heated. As sworn to by Agent Kessler, the CI informed Agent Haggerty that "[l]ast summer, while in the residence, [he had] observed multiple rifles on the premises." (Kessler Aff., at ¶ 5). Furthermore, an unnamed individual had been in Hartery's residence on multiple occasions and within the last few weeks had seen more than two rifles and ammunition that are Hartery's. (Kessler Aff., at ¶ 5). The unnamed individual had told the CI this, and the CI in turn supplied this information to law enforcement. (Kessler Aff., at ¶ 5).
The Kessler affidavit further stated that on February 27, 2003, Agent Kessler spoke with Officer Volker from the New York Department of Conservation. (Kessler Aff., at ¶ 6). Officer Volker had spoken with Jeff Sweet, owner of a taxidermy shop. (Kessler Aff., at ¶ 6). Mr. Sweet had told Officer Volker that in the fall of 2001, Defendant brought in a bear to be stuffed. (Kessler Aff., at ¶ 6). Mr. Sweet told Officer Volker that Defendant said he had shot the bear in the Adirondacks. (Kessler Aff., at ¶ 6). The affidavit also avers that in Kessler's experience as an FBI Agent, the majority of individuals store firearms and ammunition in their residences. (Kessler Aff., at ¶ 7).
Prior to execution of the search warrant on March 4, 2003, officials had Defendant under surveillance while he was driving, and being aware that he did not possess a valid N.Y. driver's license, arrested and charged him with Aggravated Unlicensed Operation of a Motor Vehicle. (Dkt. No. 22, at 21). After arresting Hartery, officials brought him to the residence where the search was being conducted. (Dkt. No. 22, at 21).
The Agents conducting the search took numerous photographs of the Hartery residence, which has led to Hartery's claim that the search was "general" in nature. (Dkt. No. 17). The defense has provided copies of those photographs and a lengthy written description of the same. Some of the photographs included are: 10 photographs of the room of Defendant's five year old daughter (Dkt. No. 17, Exhibits B1-B10); 7 photographs of a stairway in the home (Dkt. No. 17, Exhibits I1 — I7); 2 photographs of agents holding a telephone in the residence (Dkt. No. 17, Exhibit P1 — P2), and one of Hartery's girlfriend, Ms. Fiducia, with her sleeve lifted to reveal her upper arm (Dkt. No. 17, Exhibit P3).
During the initial search, agents found five rounds of ammunition on a computer desk, in a gun cabinet, and in the glove compartment of a vehicle at the Hartery home. (Dkt. No. 22, at 3, Exhibit C). The officials also found what appeared to be a firearms safe. (Dkt. No. 22, at 3). The Government alleges that Hartery refused to open the safe or give the combination to it, and Hartery's girlfriend, with whom he resides, said that she could not open it but she said that Defendant could. (Dkt. No. 22, at 3). Magistrate Judge Homer then issued a warrant on March 4, 2003, allowing officials to forcibly open the safe where numerous guns, ammunition, and other paraphernalia were found as detailed in the Evidence Recovery Log.
III. DISCUSSION
It is well settled that issuance of a search warrant by a neutral magistrate depends upon a showing of probable cause.See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). Probable cause to obtain a search warrant exists if the evidence submitted indicates a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). This does not mean that the requesting officer must make a prima facie showing of criminal activity. See id. at 235. "Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Adams v. Williams, 407 U.S. 143, 149 (1972). Rather, a finding of probable cause depends upon the judicial officer making a "practical commonsense decision" based on the "totality of circumstances." Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991); See also, U.S. v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993). Moreover, a district court reviewing a magistrate judge's probable cause determination is required to give that decision "great deference" and "a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden." See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).
A. Reliability of the Confidential Informant
The Second Circuit has instructed that the "core information in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of providing reliable information, or if it is corroborated in material respects by independent evidence." U.S. v. Wagner, 989 F.2d 69, 72-73 (2d Cir. 1993). In Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (citing U.S. v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993), quoting IL v. Gates, 42 U.S. 213, 232 (1983)), the Court explained:
In determining what constitutes probable cause to support a search warrant when the warrant is based upon information obtained through the use of a confidential informant, courts assess the information by examining the `totality of the circumstances' bearing upon its reliability . . . [T]his approach envisions probable cause as a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.
Defendant first argues that probable cause is lacking because Agent Kessler's affidavit, which was based on the word of a CI, did not adequately establish that CI's reliability. Defendant asserts that the Kessler affidavit contains a "naked conclusion" that the CI is reliable by stating that the CI has provided "reliable information related to criminal activity on multiple occasions over the past three years." Defense argues that the affidavit must establish that the information supplied by the CI has in the past led to convictions or otherwise that the information was corroborated by law enforcement as true.
The fact that the tip came from a CI, rather than an anonymous tipster, has been deemed to provide an indicia of reliability because an informant whose identity is known to authorities can be held responsible if his assertions are later realized to be fabricated. FL v. J.L., 529 U.S. 266, 270 (2000) (explaining that an anonymous tip is unlike the word of a confidential informant because the former cannot be subjected to an analysis of the speaker's knowledge or veracity); U.S. v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991). Furthermore, relying on the Supreme Court case, Adams v. Williams, 407 U.S. 143 (1972), the First Circuit has explicitly disagreed with a defendant's "contention that since the information provided to [a police officer] on certain occasions in the past may not have resulted in arrest or conviction, the informant should be deemed unreliable. We are unaware of any authority to support that bald proposition. . . ." U.S. v. Taylor, 162 F.3d 12, 19 n. 3 (1st Cir. 1993).
Moreover, an informant's first-hand knowledge provides an indicia of reliability. Wagner, 989 F.2d at 73; U.S. v. Barnhard, 299 F.3d 90, 93-94 (1st Cir. 2002) (personal knowledge that enhanced reliability included the CI's saying that he saw two firearms at the defendant's residence and that defendant had threatened the CI with one of them). In the instant case, the CI said that he had been to the Hartery home on multiple occasions and saw the firearms there (Kessler Affidavit, at ¶ 5) which is the type of first hand knowledge that enhances the informant's reliability.
Additionally, there is independent corroboration by law enforcement for the statements of the CI. Agent Kessler's affidavit stated that Jeff Sweet, a taxidermist, had informed Officer Volker that in the fall of 2001, Hartery had brought in a bear to be stuffed which Hartery said he had shot in the Adirondacks. (Kessler Aff., at ¶ 6). This is sufficient corroboration for the CI's statements that Hartery was in possession of firearms. Furthermore, Agent Kessler attested that from his experience as an FBI agent he has seen that the majority of individuals who own firearms keep and store them in their homes. (Kessler Aff. ¶ 7). Such statements have also been credited as demonstrating reliability of a CI. See Barnard, 299 F.3d at 95.
B. The Defendant's Possession of the Firearms
Defendant's possession of the firearms is only criminal because he is a felon who is not permitted to possess such items. 18 U.S.C. § 922(g)(1). Defense counsel thus argues that the CI's contention that he observed multiple rifles on the premises is insufficient because there is a "glaring omission" of "any fact that establishes that Hartery ever knew of, or had reason to know of, the `multiple' rifles in his home." (Dkt. No. 13, at 10.) However, the Kessler affidavit discusses the observations of an unnamed individual who came to the attention of authorities through the CI and who "maintains a close relationship" with the CI. (Kessler Aff., at ¶ 5). This unnamed individual had been to Hartery's home within the last few weeks prior to the warrant's issuance and saw "that there are still more than two rifles, along with ammunition, in the residence, and that the firearms and ammunition are Hartery's." (Kessler Aff., at ¶ 5). If such statements are to be given weight in a totality of the circumstances test, then there is probable cause that Hartery was in possession of the firearms. The issue then, is whether the Court can consider the statements of the unnamed individual, as told to authorities by the CI.
"Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Adams v. Williams, 407 U.S. 143, 149 (1972). Hearsay evidence from a CI may be relied upon for a finding of probable cause. U.S. v. Parcel of Property, 337 F.3d 225, 236 (2d Cir. 2003). The first hurdle, that the statements of the unnamed individual, as presented in the Kessler affidavit may constitute hearsay, does not impede a finding of probable cause.
In U.S. v. Burke, 999 F.2d 596, 597 (1st Cir. 1993), the affidavit in support of a search warrant described two conversations in which an unidentified individual had reported to the CI that the unnamed individual had seen an indoor marijuana growing operation. As Defendant argues here, the primary opposition to the probable cause finding in Burke was that the information that was most central to the affidavit came from an unidentified person whose reliability and credibility are untested and unknown. Id. at 598. However, sufficient corroboration for the unnamed individual's assertions existed in part because marijuana plants had been seized from the home two years prior to the date of the affidavit. Id. Furthermore, the unnamed individual had been to the defendant's home and reported that it "reeked" of marijuana. Id. Finally, the court explained that the credibility of the CI bolstered the testimony of the unidentified source. Id. at 599, n. 2 (The court further elaborated its decision in a footnote, saying that ". . . we think the past history of the informant is relevant and does strengthen the case for the warrant: it suggests not only that the information from the original source is being accurately reported but, as a matter of fact, that the informant has reliable sources.").
Adhering to the rationale of Burke, the Court finds that the statements of the unnamed individual mentioned in the Kessler affidavit can be considered in the totality of the circumstances to help establish probable cause. In Burke, corroboration existed, albeit incidents which happened years prior to the warrant's issuance. Here, the corroboration existed by virtue of the taxidermist who stated that Defendant said he had shot a bear. Furthermore, the credibility of the CI was established in Agent Kessler's affidavit, as explained above, and therefore can be used to support the credibility of the unnamed individual's statements. As reported in the Kessler affidavit, the CI stated that the unnamed individual said that he saw the firearms and that they belonged to Hartery. (Kessler Aff., ¶ at 5). As the Court may consider the statements of the unnamed individual, there is little question that under the totality of the circumstances, there was probable cause to find that the weapons were owned by the Defendant.
C. The Information Was Not Stale
Defendant next argues that probable cause did not exist at the time of the warrant's issuance because the information supplied by the CI was "stale". There is no bright line rule for determining whether the information contained in an affidavit supporting a search warrant was sufficiently close in time to the warrant's issuance such that probable cause can be said to exist at the time the warrant is issued. U.S. v. Wagner, 989 F.2d 69, 75 (2d Cir. 1993). The two critical factors in determining staleness are "the age of those facts and the nature of the conduct alleged to have violated the law." U.S. v. Martino, 664 F.2d 860, 867 (2d Cir. 1981), cert. den. 458 U.S. 1110 (1982). When conduct is continuing, the passage of time between the last described act and the presentation of the application becomes less significant. U.S. v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988). An undercover alcohol-purchase 21 days prior to warrant application was held to be too remote, Sgro v. U.S., 287 U.S. 206 (1932), but observance of heroin spilled on a rug 52 days prior was not too remote, U.S. v. Beltempo, 675 F.2d 472 (2d Cir.), cert. denied 457 U.S. 1135 (1982), because of the ongoing nature of drug conspiracies, U.S. v. Ortiz, 143 F.3d 728. See also, Wagner, 989 F.2d at 75. Defendant alleges that the word of the unnamed individual cannot be considered, and as such, the firearms were last seen by the CI at least five months prior to the issuance of the warrant, rendering the information in the Kessler affidavit stale. (Dkt. No. 13, at 14).
For the reasons explained above, the Court can consider the statements that the unnamed individual made to the CI. As the unnamed individual was present in the Hartery home "within the last few weeks", there can be no argument that the information supplied in the Kessler affidavit was not stale when the warrant was issued on February 28, 2003. Defense counsel agreed at the hearing that if the Court were to credit the statements by the unnamed individual, the information contained in the affidavit would not be stale.
Even without such statements, where there is evidence of on-going criminal conduct, a staleness claim may be defeated.Wagner, 989 F.2d at 75. See also, U.S. v. Gehl, 1994 WL 371329, at *5-6 (N.D.N.Y. 1994) (holding that even though affidavits cited to activities three to four years prior to the warrant issuance, the warrant was not stale where the facts allowed an "inference" of on-going criminal activity). Such an inference of on-going criminal activity may be made here. The taxidermist stated that Defendant said he had shot a bear in fall 2001, and in summer 2002 the CI saw multiple rifles in Defendant's home. This evidence, which was adduced over time, allows an inference that the illegal conduct was continuing and, therefore, the affidavit was not stale at the time of its issuance.
D. Franks v. Delaware Hearing
Defendant requests that a Franks hearing be held to determine if Agents Kessler or Haggerty knew that Hartery's girlfriend, and not Hartery, was the purchaser of the weapons. There is a presumption of validity with respect to an affidavit underlying a search warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978). To mandate an evidentiary hearing, the challenger's attack must be more than conclusory. Id. The attacker must make a "substantial showing" that a false statement was intentionally or recklessly included, accompanied by an offer of proof. Id., U.S. v. Zagari, 111 F.3d 307, 321-22 (2d Cir. 1997). A Franks hearing is not conducted where statements prove to be false — the cornerstone is that they must have been included either intentionally or recklessly. U.S. v. Trzaska, 11 F.3d 1019, 1027-28 (2d. Cir. 1997) (citing Franks, 438 U.S. at 165, 171-72) ("Every statement in a warrant affidavit doesn't have to be true. However, if a defendant can make a sufficient showing that false statements were deliberately or recklessly included in a warrant affidavit, a court should disregard the allegedly false statements and determine whether the remaining portions of the affidavit would support probable cause to issue the warrant.").
The Defendant has not met his burden of making a substantial showing that a false statement was recklessly or intentionally included. His brief merely requests that a "hearing should be held to determine whether agents made any effort, prior to the execution of the warrant, to ascertain whether the `rifles' allegedly spotted by the informant were Ms. Fiducia's, and if so, whether they omitted mention of this fact in their application for a search warrant." (Dkt. No. 13, at 15). Defense counsel submitted the May 28, 2003 affidavit of Ms. Fiducia which stated that she "lawfully purchased" and "accurately and truthfully executed all paperwork in conjunction with" two of the firearms in question. (Dkt. No. 13, Exhibit B, Fiducia Aff. ¶ 2). In her affidavit, Ms. Fiducia stated further that she "took possession" of the third firearm when its previous owner, who had resided with her, passed away. (Dkt. No. 13, Exhibit B, Fiducia Aff. ¶ 2). This may suggest that the statements proved to be false. However, Defense counsel does not suggest why this information would have been known to Agents Kessler or Haggerty. Ms. Fiducia's statements of ownership, without more, do not rise to the level of a substantial showing of reckless behavior on the part of Agents Kessler and Haggerty. See, U.S. v. Zagari, 111 F.3d 307, 321-22 (2d Cir. 1997) (denying request for a Franks hearing where "nothing before us indicates that Agent Marston's representations were false or misleading").
E. The Good Faith Exception
The government spends considerable space in its brief discussing the standard of review, reminding the Court of the deference that is due to the Magistrate's determination that probable cause existed to issue a warrant. The government then moves in its brief to the argument that even if under that deferential standard no probable cause is found, the good faith exception to the warrant requirement announced in U.S. v. Leon, 468 U.S. 897 (1984), saves the evidence from suppression. Specifically, the government avers that Agent Kessler and the other searching agents acted reasonably and in good faith reliance on the warrant, and, therefore, the seized evidence may be introduced. (Dkt. No. 22, at 14-18).
The exclusionary rule does not apply to evidence obtained by an officer or agent whose reliance on a search warrant was objectively reasonable, even though the warrant is ultimately found to be defective. U.S. v. Tisdale, 195 F.3d 70, 72 (2d Cir. 1999). As here, where the Court has applied the law and determined that the warrant is valid, it was objectively reasonable of the searching agents to think so, as well. Therefore, the agents acted in good faith.
F. The Arrest Of Defendant and The Search of the Vehicle He Was Driving
The Defendant argues that the search warrant did not authorize the arrest of Mr. Hartery nor the search of his vehicle, nor was the search permissible under the "limited power searching agents have to detain a person and frisk a person or [sic] near the premises being searched." (Dkt. No. 13, at 15-16). In its reply, the government responds that the search was authorized as either a search incident to arrest, or under the inventory search exception and inevitable discovery doctrine. (Dkt. No. 22, at 21-23).
The arrest that the Government argues authorized the search incident to arrest was made pursuant to New York Vehicle and Traffic Law § 511-1(a), for Defendant's driving without a valid driver's license.
In its brief, the government discussed the admissibility of certain rounds of ammunition found in the vehicle. (Dkt. No. 22, at 21-22). However, in reply, Defendant then states that the evidence found during the search of the vehicle was not the ammunition. (Dkt. No. 26, at 22). At the January 16, 2004 hearing, the government acknowledged that Defendant was correct in that the items seized in the search of the vehicle that Mr. Hartery was driving were not the ammunition it had previously alleged. The Government did not object to the Defendant's request for a hearing on the arrest of Mr. Hartery and the search of the vehicle he was then driving. The Court also finds that a hearing on this arrest and search is warranted.
G. Blanket Suppression Is Not Warranted
In a supplemental omnibus motion, Defendant claims that the photographs taken during the search of the Hartery residence amounted to a seizure of the items photographed, relying on U.S. v. Villegas, 899 F.2d 1324, 1335 (2d Cir.), cert. den., 498 U.S. 991 (1990); Ayeni v. U.S., 848 F. Supp. 362, 367 (E.D.N.Y. 1994). Defendant in his brief argues that by extensively photographing the Hartery home, the search amounted to a general search in violation of the warrant which was issued for the search of firearms and ammunition, firearms receipts and related paraphernalia. (Dkt. No. 17, at 1-2). Therefore, Defendant requests that the Court order blanket suppression of all evidence found in the search because that is the remedy "when government agents `flagrantly disregard' the terms of a warrant, so that a `general search ensues' . . .". (Dkt. No. 17, at 12) (quotingU.S. v. Liu, 239 F.3d 138, 140 (2d. Cir. 2000), cert. denied, 534 U.S. 816 (2001)). The Second Circuit has instructed that the "rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially indistinguishable from a general search."Liu, 239 F.3d at 141. The government requests that a hearing should be held if the Court deems it necessary to review the photographs or hear testimony from the agent who led the search.
Deciding whether such actions constituted a seizure within the precedent cited by Defendant is unnecessary in light of the Court's holding.
The Court agrees with the government that because the warrant was issued for the search of small items like ammunition and firearms receipts, the Government was "not particularly limited in where they could look for these types of things. They could look in rooms, drawers, closets, etc." (Dkt. No. 22, at 29). In taking photographs of the Hartery home, the Government was documenting its conduct in performing the search. The Government argues that these types of photographs are taken by the officers to record the condition of the home before and after the search so as to insulate the government from claims of damage to the home or its contents. (Dkt. No. 22, at 29). In U.S. v. Palacios, the court clearly stated that an "inventory search is `reasonable' under the Fourth Amendment if it is conducted pursuant to standardized procedures or established routines, and if the search serves to (i) protect an owner's property while in police custody, (ii) insure against claims of lost, stolen, or vandalized property, and (iii) protect the police from danger." 957 F. Supp. 50, 53 (S.D.N.Y. 1997) (citing Florida v. Wells, 495 U.S. 1, 4-5 (1990), and Colorado v. Bertine, 479 U.S. 367, 371-72 (1987)).
The government's actions in the present case, which are meant to protect both the government and the homeowner, do not rise to the level of "flagrant disregard" nor "bad faith" on the part of the agents that would require blanket suppression of all the evidence found. Taking such "inventory photographs" is typically the practice of the agency to insulate the Government from damage claims and to protect the homeowner. (Dkt. No. 17, at 29). See Palacios, 957 F. Supp. at 53 (citing to U.S. v. Thompson, 29 F.3d 62, 65-66 (2d Cir. 1994), and U.S. v. Arango-Correa, 851 F.2d 54, 49 (2d Cir. 1988)) ("Unwritten routine office practices can meet the requirement of standardized procedures."). The Defendant's request for blanket suppression is therefore denied because there was no bad faith on the part of agents in taking these photographs.
However, while the photographs submitted by Defendant don't rise to the level of flagrant disregard, one in particular is objectionable if taken for the purpose of an inventory search. In its brief, the government acknowledged that it was "not asserting that all the photographs taken fall into this [inventory] category. . . ." (Gov. Brief at 29). Among the 93 photographs taken during the search that were submitted by defense counsel, one picture depicts Ms. Fiducia rolling up her sleeve to reveal her upper arm. (Dkt. No. 17, Exhibit P-3). Such a photograph cannot be said to have been for the purpose of recording the condition of the area searched. At the hearing, the government still could offer no explanation for this particular photograph. As this photograph could not be deemed part of an inventory search, the Court now suppresses this photograph as a seizure that went beyond the scope of the warrant. See U.S. v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) ("[W]hen items outside the scope of the valid warrant are seized, the normal remedy is suppression and return of those items.") (quoting Andresen v. Maryland, 427 U.S. 463, 482, n. 11 (1976), and U.S. v. Dunloy, 584 F.2d 6, 11 n. 4 (2d Cir. 1978)).
IV. CONCLUSION
For the reasons set forth above, it is hereby
ORDERED, that a suppression hearing be held to determine the admissibility of the evidence seized from the vehicle Defendant was operating; This hearing will be held on Thursday, February 26, 2004 at 10:00AM at the Federal Courthouse in Albany; it is further
ORDERED, that the photograph taken of Ms. Fiducia (Dkt. No. 17, Exhibit P-3) during the search of Defendant's home is suppressed; it is further
ORDERED that Defendant's omnibus motion is DENIED in all other respects; it is further
ORDERED, that the Clerk serve a copy of this order on all parties by regular mail.
IT IS SO ORDERED.