Opinion
02-CR-948 (NGG)
May 6, 2003
MEMORANDUM AND ORDER
Defendant Jack Robinson ("Defendant" or "Robinson") moves pursuant to Rules 41(e) and (f) of the Federal Rules of Criminal Procedure for the return of property and suppression of evidence that was discovered and seized through a search of his wife's business premises. For the reasons set forth below, the defendant's motion is denied.
Effective December 1, 2002, the format of Rule 41 of the Federal Rules of Criminal Procedure has changed substantially. For purposes of this motion, I use the prior format, as defendant's motion was made on October 4, 2002.
I. Background
On July 1, 2002, Magistrate Judge Joan M. Azrack issued a search warrant directing United States law enforcement agents to search a cosmetics store known as L'Image Perfumes and Cosmetics located at 1458 Hyland Boulevard, Staten Island, New York (the "premises"), which is owned by Robinson's wife. (Defendant's Notice of Motion ("Def. Mot."), Ex. B.) The warrant specifically authorized agents to search for devices that may be used to cause a fire and to search for perfumes and cosmetics that were counterfeited, stolen, or outdated. (Id.) The application for the warrant, and the warrant itself, allege violation of 18 U.S.C. § 844 (i) and 1341. Additionally, the warrant authorized the agents to execute the search at any time, day or night. (Id. Ex. A and B.)
Robinson, throughout his affidavit, refers to the premises as his wife's place of business. (See e.g., October 4, 2002 Affidavit of Jack Robinson ("Rob. Aff. I") ¶ 4(3)). He uses this as an attempt to negate probable cause that he was about to commit a crime at the premises. (See id. ¶ 4(8) ("[t]he address and telephone numbers of `L'Image' is in the phone book and is not Jack Robinson's premises. He is not nor was the lessee of the space or an officer, director or shareholder of `L'Image.' Another inconclusive bit of rank hearsay unsupportive of probable cause"). Although Robinson's attempt to remove himself from L'Image fails to negate probable cause, it does require this court to consider whether or not Robinson has standing to bring this motion to suppress. In Minnesota v. Carter, 525 U.S. 83 (1998), the defendant and the lessee of an apartment were sitting in one of its rooms packaging cocaine. A police officer conducting surveillance of the apartment looked through a drawn window blind and saw the defendant and the lessee putting white powder into bags. The defendant brought a motion to suppress the seized evidence. He argued that the police officer's act of looking through the window constituted an illegal search. The Court held that the defendant did not have a legitimate expectation of privacy in the apartment. Consequently, it held that defendant had no standing to move to suppress fruits of the search. The Court acknowledged that ownership of a premises is not a prerequisite for standing, but it held that this particular defendant did not have a legitimate expectation of privacy for the following three reasons: (i) the apartment was being used for a business transaction; (ii) defendant was in the apartment for a brief amount of time; and (iii) the defendant had no other significant connection with the apartment. In this case, despite the fact that Robinson does not own L'Image, he had a reasonable expectation of privacy at the premises. First, although he does not own L'Image, he apparently owns all of its merchandise. (See Rob. Aff. I ¶ 10 ("I want the merchandise back. I don't believe it is stolen. I did not buy it knowing that it was stolen")). Additionally, Robinson has his own set of keys to the premises. (See December 9, 2002 Affidavit of Jack Robinson ("Rob. Aff. II") at 1.) Based upon this and other information elicited at the evidentiary hearing, I conclude that Robinson had a reasonable expectation of privacy in the premises. Consequently, he has standing to bring this motion.
Law enforcement agents executed the search warrant on July 5, 2002, at about 1:30 a.m. (Transcript of January 28, 2003 Evidentiary Hearing ("Tr.") at 7.) The Defendant accompanied the agents to the premises and opened it for them. (Tr. at 18.) The search did not reveal evidence of an attempted arson. (Def. Mot. ¶ 6.) Gary Hunsinger, the Vice President of Manufacturing and Engineering for Chanel Inc. ("Chanel"), accompanied the searching agents to assist them in identifying goods that may have been stolen from Chanel. Before allowing Mr. Hunsinger into the premises, and prior to conducting the search for stolen merchandise, ATF agents searched the premises for evidence of an attempted arson. Once they determined that the premises was "safe" they called for Mr. Hunsinger. (Tr. at 57.) Once inside the premises, Mr. Hunsinger immediately identified boxes that were stolen from Chanel's warehouse in Pittston, Pennsylvania. (Id. at 58.) Several of these boxes were in "open view" and Mr. Hunsinger was able to identify them without moving any other items. (Id.) After these items were discovered, the defendant made various incriminating statements. (See Government's Memorandum of Law in Opposition to the Defendant's Motion to Suppress Physical Evidence and Statements ("Gov. Mem.") at 6.) Thereafter the agents arrested defendant and they informed him of his Miranda rights. (Id.) Robinson waived his Miranda rights and continued to make incriminating statements. (Id.)
Subsequently, Robinson was indicted for violation of 18 U.S.C. § 2315 and 3551. Robinson now alleges that the warrant was issued without probable cause. Additionally, he alleges other violations of Rule 41 of the Federal Rules of Criminal Procedure. Accordingly, he moves to suppress the items seized as well as the incriminating statements that he made during the search, pursuant to Rule 41(f). Additionally, he seeks to recover the items that were seized pursuant to Rule 41(e).
II. Discussion
(i) Facts Alleged in the Affidavit
Judge Azrack issued the search warrant pursuant to an affidavit submitted by a Special Agent with the Bureau of Tobacco and Firearms ("ATF"), Stanley K. Wojis. (See Def. Mot. Ex. A.) The following facts were presented to Judge Azrack by the Wojis Affidavit ("Wojis Aff.").
Since July 1999, ATF agents have been investigating the cause of three fires that took place at three different perfume stores located in Staten Island, New York. (Wojis Aff. ¶ 1.) Each store was either owned or operated by Robinson. (Id.) The fires occurred on November 18, 1990, July 25, 1996, and July 5, 1999. (Id.) In each fire, substantial amounts of inventory was destroyed and large insurance claims were made. ad.) A total of $1,800,000 of insurance proceeds were collected on these claims. (Id. ¶ 5.) The New York City Fire Department Bureau of Fire Investigations attributed the 1990 and 1996 fires to electrical equipment. (Id. ¶ 3.) At the time those fires occurred, arson was not suspected. (Id.) However, the 1999 fire was declared to be "incendiary," which means arson was suspected. (Id. ¶ 4.)
On or about June 25, 2002, Jerry Yanovich, Robinson's son-in-law, informed Wojis that Robinson "bragged over dinner" about the 1999 fire at his perfume store. (Id. ¶ 7.) Robinson's comments caused Yanovich to believe that Robinson intentionally caused that fire. (Id.) On May 29, 2002, Wojis received an anonymous phone call stating that Robinson "bragged over dinner" that on July 4, 2002, he was going to burn his new perfume store, which was located near the Verrazano Bridge on Highland Avenue, Staten Island, New York. (Id. ¶ 13.) The anonymous informant also stated that Robinson had, in the past, burned down a perfume store on a July 4. (Id.) Private investigator Fred Bornhofen told Agent Wojis that other individuals informed him that Robinson purchased a cosmetics store and that he will cause a fire there in the near future. (Id. ¶ 8.) The affidavit does not provide a time frame for this conversation. On May 30, 2002 and June 4, 2002, a New York City Fire Marshal conducted surveillance of the premises. (Id. ¶ 10.) He observed that only "minimal merchandise" was present at the premises. (Id.) Surveillance on June 27, 2002 revealed that the store was "well stocked with perfumes and cosmetics." (Id. ¶ 11.)
The affidavit also states that Richard Lima ("Lima") and a confidential informant told Wojis that Lima had provided Robinson with substantial amounts of stolen and outdated brand name perfumes and cosmetics. (Id. ¶ 7.) The affidavit does not provide a time frame for this conversation. The affidavit also states that on June 18, 1982, Robinson was convicted of embezzlement. (Id. ¶ 2.) Finally, on January 10, 1997, Robinson was convicted of trafficking of counterfeit goods and wire fraud. (Id.)
Based on the above, Judge Azrack found that there was probable cause that Robinson was in violation, or about to commit acts in violation, of 18 U.S.C. § 844 (i) and 1341. Accordingly, she authorized the agents to search for "items or devices able to cause fire, including, but not limited to, altered electrical wiring, electrical appliances, combustible material, timing devices, or any flammable material not generally associated with the operation of a perfume business, and perfumes and cosmetics that are counterfeit, stolen, outdated, or otherwise illegally obtained, or other information or materials constituting the fruits, instrumentalities and evidence of violations of T. 18, U.S.C. § 844(i) and 1341."
(ii) Robinson's Objection to the Probable Cause Determination
Robinson argues that the Wojis Affidavit failed to establish probable cause that he committed or was about to commit a federal crime. The Government concedes that the search warrant failed to articulate probable cause for mail fraud or that Robinson knowingly possessed stolen property, the value of which exceeded $5,000, that crossed state lines. (See Gov. Mem. I n. 2. See also, Tr. at 112.) Nevertheless, the Government argues that evidence of the search should not be suppressed for two reasons. First, argues the Government, the United States v. Leon, 468 U.S. 897, 920-21 (1984) good faith exception is applicable. Second, the items seized were within Mr. Hunsinger's "plain view" while he accompanied the agents on their lawful search of the premises for arson related materials. Accordingly, argues the Government, the plain view doctrine is applicable. Because I conclude that suppression is not appropriate pursuant to the Leon good faith exception, I need not reach the Government's plain view argument.
In Gov. Mem. I, the Government argued that the plain view doctrine was applicable. At that point, defendant's counsel did not dispute the application of the plain view doctrine to this case. However, this court had several issues concerning the plain view doctrine's application to this case and I raised them sua sponte at oral argument, which was heard on November 25, 2002. Those concerns are as follows. First, the Government did not submit evidence in support of its position that the stolen merchandise was in fact within Mr. Hunsinger's plain view. If the stolen merchandise was discovered only after items not pertinent to the lawful search were moved, the plain view doctrine would not apply. See Arizona v. Hicks, 480 U.S. 321 (1987). To alleviate this concern, I ordered the parties to submit affidavits concerning the search of the premises. Because the affidavits failed to directly address this issue, I held an evidentiary hearing at which Agent Wojis and Gary Hunsinger testified. Their uncontested testimony, which I fully credit, supports the Government's position that Mr. Hunsinger in fact identified stolen merchandise without moving items unrelated to the lawful search. (See Tr. at 14 and 58.) Nevertheless, I am reluctant to apply the plain view doctrine to this case.
At the evidentiary hearing, Agent Wojis testified that Mr. Hunsinger was called into the premises only after ATF agents searched the premises for arson related materials. (Tr. at 13.) Accordingly, Mr. Hunsinger's identification of the stolen merchandise came after the search for the arson was complete. It was not made "while searching for the planned arson." (Gov. Mem. I at 6) (emphasis added).
Additionally, Mr. Hunsinger's and Agent Wojis's testimony implies that only Mr. Hunsinger, not the searching agents, could identify boxes that were stolen from Chanel's warehouse. If the warrant established probable cause to search for arson only, then arguably, Mr. Hunsinger, who has no apparent expertise in arson investigation, was not lawfully present at the search. Because the stolen merchandise was only within Mr. Hunsinger's plain view, as he was the only person present at the search that could identify the Chanel goods as stolen, the merchandise did not fall within the plain view of someone conducting a lawful search.
However, because I conclude that the Leon good faith exception applies to this case, I need not decide these issues concerning the plain view doctrine.
Under Leon, the exclusionary rule does not apply where an officer relies on a search warrant in "objective good faith" even though the warrant was later determined to be unsupported by probable cause. Leon, 468 U.S. at 923. In determining whether or not an officer acted in objective good faith, a court's inquiry "is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances — including whether the warrant application had previously been rejected by a different magistrate — may be considered." (Id.)
In the following four situations, the Leon good faith exception does not apply: (i) where the issuing magistrate was knowingly misled by the proponent of the warrant; (ii) where the issuing magistrate wholly abandoned his or her judicial and neutral role; (iii) where the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (iv) where the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid. Defendant Robinson apparently argues that each of these exceptions apply. (See Defendant's November 19, 2002 Memorandum of Law in Support of his Rule 41(e) and (f) Motion ("Rob. Mem. III") at 9-11.) I disagree.
The first exception does not apply because there is no allegation that Agent Wojis knowingly or recklessly misled Magistrate Judge Azrack. While defendant alleges that many statements in the affidavit are false, he does not claim that Agent Wojis made these statements knowing that they were false. Moreover, a side for claiming that various statements were false, he has not made a showing that these statements were in fact false.
Robinson claims that the Wojis Affidavit contained the following false allegations. First, regarding the 1990 fire, Robinson claims that there was never an insurance claim. (Rob. Aff. I ¶ 4(1).) Second, he claims that he was a mere employee of the cosmetics stores mentioned in the affidavit and he therefore did not share in the insurance proceeds. (Id.) Third, he claims that the term "incendiary," which investigators to describe the 1999 fire, does not necessarily mean that the fire was an arson. (Id. ¶ 4(4).) Additionally, he claims that the information provided by his son-in-law cannot be trusted because it was generated by Robinson's "hate inspired ex wife." (Id. ¶ (4)(7).) Moreover, Robinson claims that the anonymous informant that said he was going to burn the store down on July 4, 2002, was either his ex-wife or son-in-law, so that information is also unreliable. (Id. ¶ 13.) Additionally, he claims that the mere fact that the store was not stocked with merchandise on June 4, 2003 and that it was well stocked on June 27, 2002 does not indicate that arson was afoot. (Id. ¶¶ 10-13.) Finally, he claims that the building was not insured for fire damage, so there was no incentive for him to burn down the business. (Id. ¶ 13.)
Robinson has not moved for a Franks hearing to demonstrate his allegations concerning the Wojis Affidavit. In fact, Robinson claims that a Franks hearing is not necessary because even if the contested statements are true, probable cause has still not been established. (Robinson's October 14, 2002 Memorandum of Law ("Rob. Mern. I") at 9.) Because Robinson has not moved for a Franks hearing, I review the Wojis Affidavit without setting aside the statements Robinson contends are false.
The second exception is not relevant because there is no indication that Judge Azrack failed to remain neutral throughout the issuance of the warrant. This exception contemplates a situation where the officer issuing the warrant abandons her neutral role. As the Court in Leon specifically stated "[t]he exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)." Leon, 468 U.S. at 923. In Lo-Ji Sales, the officer that issued the warrant assisted with the execution of the search. The Supreme Court invalidated the warrant because it was not issued by a "neutral and detached judicial officer." Id. at 326. Here, there are no allegations that Judge Azrack took steps that removed her neutrality in any way. Accordingly, this exception does not apply.
Nor does the third exception apply to this case. The Wojis Affidavit states that "[y]our deponent and other agents with ATF have spoken to Richard Lima and a confidential informant who have both stated that Richard Lima has provided to Jack Robinson substantial amounts of stolen and outdated brand name perfumes and cosmetics. (Wojis Aff. ¶ 6.) The Government concedes that this alone did not demonstrate probable cause that Robinson was in violation of 18 U.S.C. § 1341 and 2315. Nevertheless, argues the Government, it would have been objectively reasonable for the executing officers to believe that this provision established probable cause that the Robinson committed a federal crime concerning these goods. I agree.
Richard Lima informed Agent Wojis that he provided Robinson with "substantial amounts of stolen and outdated brand name perfumes and cosmetics." (Wojis Aff. ¶ 6) (emphasis added). Richard Lima's statement is reliable because his basis of knowledge as the provider of the stolen goods is extremely strong. See Illinois v. Gates, 462 U.S. 213, 239 (1983) (establishing a "totality of circumstances" approach for determining reliability of an informant's tip). It was objectively reasonable for the executing officers to conclude that Robinson's possession of these goods constituted a federal crime. It cannot be said that the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923.
Robinson argues that the warrant and supporting affidavit failed to establish that he was committing a federal crime by possessing these goods. Accordingly, he claims that there is no way that the federal officers could have relied on the warrant in good faith. He cites two cases in support of this argument. In United States v. Birrell, 242 F. Supp. 191, 201 (E.D.N.Y. 1965), an affidavit in support of a warrant stated, in substance, that there was reason to believe "that certain records are being concealed at the . . . premises, `which records have been used in committing a violation of Title 18 United States Code Section 1341.'" The court held that this did not establish probable cause, as there was not a "single fact stated which even tends to show that Birrell used the mails or that the described books and records were used as the means of committing any offense, let alone as the means for committing a violation of 18 U.S.C. § 1341." Id. (emphasis added.) This case is distinguishable for several reasons. First, Birrell predates the Leon good faith exception. Accordingly, the Birrell analysis focused strictly on probable cause, not good faith reliance on a search warrant. Additionally, Birrell held that there was no probable cause because the affidavit did not mention the mails or that the records were used as the means for committing any offense. That is not the case here, as the affidavit states that Robinson purchased a substantial amount of stolen goods. The defendant also cites United States v. Vinnie, 683 F. Supp. 285 (D.Mass. 1988). In Vinnie, a federal magistrate judge issued a warrant to search defendant's business premises. The magistrate judge concluded that there was probable cause to believe that the defendant violated 18 U.S.C. § 844 (i). The defendant moved to suppress on the ground that burning a private residence does not constitute a violation of § 844(i). The district court agreed. It held that as a matter of law, § 844(i) did not apply. Accordingly, the court refused to apply the Leon good faith exception because the case did not "involve the difficult determination of what quantum of evidence constitutes probable cause; it involve[d] the more fundamental problem of a magistrate acting without subject matter jurisdiction." Id. at 288. The magistrate judge acted without subject matter jurisdiction because, as a matter of law, § 844(i) did not apply to a private residence. Here, harboring substantial amounts of stolen cosmetics could constitute a federal crime. Accordingly, this does not raise issues of federal jurisdiction and the Leon good faith exception is applicable.
Finally, the fourth exception is not relevant because the warrant is simply not facially deficient. Defendant states that this exception applies because the warrant was "unsupported by any probable cause contained in the ATF agent's affidavit allegedly in support of the warrant." (Rob. Mem. III at 11.) This argument simply restates defendant's allegation that the warrant was issued without probable cause. It in no way relates to the fourth exception.
Based on the above, I conclude that the Leon good faith exception applies to this case. Accordingly, defendant's motion to suppress evidence based upon the fact that the warrant was issued without probable cause is denied.
Although it is not necessary to resolve the issues arising under the plain view doctrine, it bears mentioning that I am thoroughly convinced that Wojis Affidavit established probable cause that Robinson would violate 18 U.S.C. § 844 (i).
The Wojis Affidavit sufficiently established probable cause that Robinson was about to commit arson. Although Robinson provides innocent explanations for many of the allegations in the Wojis Affidavit, "[t]he fact that an innocent explanation may be consistent with the facts as alleged . . . does not negate probable cause." United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1990). Additionally, as mentioned in footnote 4, Robinson has not moved for a Franks hearing. Accordingly, this court's probable cause analysis must consider the disputed allegations in the Wojis Affidavit.
On May 29, 2002, an anonymous informant contacted Agent Wojis and told him that Robinson "bragged over dinner" that he intended on burning down his new perfume store on July 4, 2002. (Wojis Aff. ¶ 13.) In Gates, 462 U.S. at 239, the Supreme Court held that determining whether an anonymous informant's tip can establish probable cause, must be based on the "totality of circumstances." Prior to this decision, the rule was that for an anonymous informant to provide probable cause, the proponent of the warrant must demonstrate basis of knowledge and reliability. The Supreme Court abandoned the two-prong test in lieu of an approach that is "far more consistent with our prior treatment of probable cause." Id. at 231. The "totality of circumstances" approach simply views basis of knowledge and veracity as two elements that may assist in establishing probable cause, but a showing of either one is not always necessary. Id. at 239. "It is enough, for purposes of assessing probable cause, that corroboration through other sources of information reduce[s] the chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting the hearsay." Id. at 244-45 (internal citation and quotation omitted).
Here, the anonymous informant's tip has been corroborated in several ways. First, the informant implied that he heard this information directly from Robinson himself, as he stated that Robinson made his statement "over dinner." (Wojis. Aff. ¶ 13.) Accordingly, the informant established substantial basis of knowledge regarding this information. Additionally, the informant knew that Robinson burned down his perfume store on a July 4 in a prior year. This undisclosed information, although not proven, has been corroborated by Robinson's son-in-law. (See Wojis Aff. ¶ 7.) Because the informant had access to undisclosed information, the magistrate judge could have concluded that the informant's prediction concerning Robinson's future criminal activity was correct. Additionally, the tip was corroborated by the fact that merchandise at the premises substantially increased immediately prior to the date the informant said the arson would occur. Although an increase in a store's merchandise is innocent in nature, "innocent behavior frequently will provide the basis for a showing of probable cause." Gates, 462 U.S. at 245 n. 13. The anonymous informant's corroborated tip, along with the allegations of Robinson's prior involvement with torched cosmetics stores, established probable cause that Robinson was going to engage in arsonist activity at the premises.
Robinson argues that even if the Wojis Affidavit established probable cause that he would commit arson, it failed to demonstrate that Robinson would engage in conduct that would violate 18 U.S.C. § 844 (i). Section 844(i) makes it a federal crime to "maliciously damage or destroy, or attempt to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in activity affecting interstate of foreign commerce." Robinson argues that the Wojis Affidavit failed to demonstrate that the premises was used in interstate commerce. Accordingly, argues Robinson, the Wojis Affidavit failed to establish probable cause that he was going to commit a federal crime.
The defendant relies upon United States v. Brouillette, 478 F.2d 1171 (5th Cir. 1973) in support of his argument. In Brouillette, the defendants were convicted of violating 18 U.S.C. § 1952. Section 1952 prohibits the use of interstate commerce in promoting or establishing unlawful activity. The defendants were accused of operating a prostitution ring. Although the affidavit alleged violation of section 1952, it did not indicate that defendants were involved in interstate activity. Accordingly, the Fifth Circuit invalidated the warrant because "The magistrate . . . could have found no probable cause to believe that a federal offense had been committed on the basis of the facts supplied in the affidavit." Id. at 1177. Robinson argues that this case is analogous to Brouillette because the affidavit does not allege that the building or personal property was used in interstate commerce.
This argument is without merit. The Supreme Court has specifically held that 18 U.S.C. § 844 (i) covers every property that is used in business, whether or not it is directly involved in interstate commerce. In Russell v. United States, 471 U.S. 858 (1985), the Court examined the legislative history of the statute and determined that "Congress intended to exercise its full power to protect business property . . . the legislative history suggests that Congress at least intended to protect all business property." Id. at 861-62. In United States v. Joyner, 201 F.3d 61 (2d Cir. 2001)' the Second Circuit adopted a similar per se rule regarding bars and restaurants. It held that "if "the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties," then the local operation of a restaurant is merely an element of a much broader commercial market of food and drink delivery." Id. at 79 (internal citation omitted.) Similarly, the operation of a local perfume store is merely an element of a much broader commercial market for cosmetics.
The Wojis Affidavit states that "upon information and belief, there is probable cause to believe that in the evening of July 4, 2002, within THE PREMISES KNOWN AND DESCRIBED AS THE OFFICES OF L'IMAGE PERFUMES AND COSMETICS, INC., . . . there will be items or devices able to cause fire." (Wojis Aff. at 1.) This clearly implies that the arson was to occur at a perfume business. Pursuant to Russell and Joyner, this sufficiently demonstrated probable cause that a federal crime was about to occur.
III. Defendant's Objection to the Nighttime Search
The warrant issued by Judge Azrack authorized the agents to perform a daytime or nighttime search. Rule 41(c)(1) of the Federal Rules of Criminal Procedure requires that a search warrant be executed at daytime, unless "reasonable cause" is shown why execution should occur at another time. The Government contends that the Wojis Affidavit sets forth sufficient facts demonstrating reasonable cause for a nighttime search. Additionally, the Government argues that even if reasonable cause did not exist, suppression is not an appropriate remedy for violation of Rule 41.
Paragraph 16 of the Wojis Affidavit states "[b]ecause of the nature of the allegations in this affidavit, your deponent requests permission to execute this search warrant at night." This established reasonable cause to execute the search at night. As demonstrated in footnote 6, the Wojis Affidavit established probable cause that Robinson was going to cause a fire at the premises on July 4, 2002. That, coupled with several reliable reports that Robinson caused a fire in a cosmetics store on a prior July 5th evening, constitutes reasonable cause to execute the search at night.
Even if reasonable cause to perform a nighttime search was not established, suppression of the evidence is not an appropriate remedy. In United States v. Burke, 517 F.2d 377 (2d Cir. 1975), the court held that items seized in violation of Rule 41(c)(1) should not give rise to suppression unless "(1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if [Rule 41] had been followed, or (2) there is evidence of intentional and deliberate disregard [of the rule]." Neither of these exceptions are present here. Accordingly, exclusion is not an appropriate remedy.
IV. Suppression of Robinson's Statements
While executing the search, Robinson apparently made various incriminating statements. (See Gov. Mem. I at 6.) Once the search was completed, Robinson was placed under arrest and his Miranda rights were read to him. (Id.) He agreed to waive his Miranda rights and he continued to make incriminating statements. (Id. at 6-7.)
Robinson argues that his incriminating statements should be suppressed as "fruit of the poisonous tree." In Wong Sun v. United States, 371 U.S. 471 (1913), the Supreme Court held that admissions made pursuant to an illegal search or seizure fall within the exclusionary rule. Additionally, in Brown v. Illinois, 422 U.S. 590 (1975), the Court held that incriminating statements made following an illegal search fall within the exclusionary rule even if the statements were made after a defendant was informed of his Miranda rights. Accordingly, if the search of the premises was in fact illegal, Robinson's incriminating statements should be suppressed pursuant to the exclusionary rule. However, because I have concluded that the Leon good faith exception is applicable, Robinson's statements are not the fruit on an improper search. Accordingly, his motion to suppress incriminating statements is denied.
The Government also claims that Robinson's statements were not in violation of his Fifth Amendment right. (See Gov. Mem. I at 16-18.) However, that issues is not relevant because the Defendant does not allege that his Fifth Amendment right to counsel was violated. Accordingly, I will not address that issue.
V. Compliance with the Inventory Requirement
Robinson also alleges violation of Rules 41(d) and (g) of the Federal Rules of Criminal Procedure. These rules require an officer executing a search warrant to make an inventory list of the items seized and file it with the clerk of the court. Robinson claims that this was not done. The Government has provided this court with documentary evidence that an inventory list was made and returned to the clerk of the court. (See Gov. Mem. I Attachment F.) Accordingly, defendant's allegation is simply not correct.
Conclusion
For the reasons stated here, defendant's motion for suppression of evidence and for the return of seized property pursuant to FED. R. CIV. P. 41(e) and (f) is denied.
SO ORDERED