U.S.v.Albert

United States District Court, E.D. Louisiana, New Orleans DivisionOct 27, 2000
Criminal Action No. 00-290; SECTION "N" (E.D. La. Oct. 27, 2000)

Criminal Action No. 00-290; SECTION "N"

October 27, 2000


ORDER AND REASONS


EDITH BROWN CLEMENT, U.S. District Judge.

Before the Court are defendant Dwight Albert's Motion to Suppress Confession and Motion to Suppress Evidence. On October 25, 2000, the Court conducted a hearing on Albert's motions. For the following reasons, defendant's motions are DENIED.

BACKGROUND

On August 1, 2000, based on information from a confidential informant, the United States Drug Enforcement Agency ("DEA") and the Gretna Police Department began surveillance of defendant Dwight Albert. Agents allegedly saw Albert provide drugs to the informant on three occasions during August and September, 2000. On September 7, 2000, DEA's agents executed a federal search warrant at Albert's residence. Albert was immediately placed under arrest. He allegedly waived his Miranda rights and told the agents that three ounces of cocaine were hidden behind his bedroom door. The agents seized the cocaine, and Albert allegedly admitted that it was his.

Albert now moves to suppress (1) his confession on the grounds that he was not read his Miranda rights and (2) the evidence seized from his residence on the grounds that the search warrant was deficient.

LAW AND ANALYSIS

The defendant claims that the police questioned him about his alleged drug activities without reading him his Miranda rights. The government claims that Albert was advised of his rights twice before questioning. The Court granted Albert's request for a hearing in order to receive evidence on that disputed factual issue, See United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983) (holding that an evidentiary hearing is required on a motion to suppress only when necessary to receive evidence on an issue of fact). However, at the hearing, Albert did not present any evidence supporting his position. The arresting officer, DEA Agent Edward Coffey, took the stand, but he was not even questioned about this issue. Accordingly, Albert's Motion to Suppress Confession is DENIED.

Albert also moves to suppress the drugs seized from his residence, claiming that (1) the affidavit supporting the search warrant contained material false misstatements, (2) the warrant violated the particularity requirement of the 4th Amendment, (3) the search unreasonably exceeded the scope of the warrant, (4) the probable cause for the warrant was supplied by governmental overreaching, and (5) the police seized notebooks that contain incriminating testimonial evidence.

The Court finds that Albert's main contentions of error in the affidavit are simply a misunderstanding on his part. Albert alleges that the drug weights listed in the affidavit are too high and their corresponding prices are too low. However, Agent Coffey testified that the DEA weighed the cocaine and its packaging and listed this "gross weight" in the affidavit. Obviously, the gross weight is much higher than what Albert allegedly sold. Likewise, what Albert alleges is too low a price for the gross weight is actually the street price for the cocaine alone. Albert's other contentions of error, that the times and dates on the recorded telephone conversations were altered and that the confidential source was known to be unreliable, are wholly unsupported by the testimony presented at the hearing. Accordingly, the Court finds that the statements contained in the affidavit are correct and that the government did not engage in overreaching to create probable cause.

Having resolved the alleged false statements in the affidavit, the Court finds that the search warrant is valid in all other respects. The warrant was sufficiently particular and limited in scope: it identified the correct address, adequately described Albert's residence, and properly limited seizure to items relating to drug activities and materials that would identify the occupants of the building. See United States v. Dancy, 947 F.2d 1232 (5th Cir. 1991) (holding that warrant was sufficiently particular given correct street address, even if no other description was given), see also United States v. Washington, 48 F.3d 73, 77-78 (2nd Cir. 1995) (holding that warrant authorizing seizure of drug paraphernalia and documents related to drug activities was sufficiently particular because affidavit established continuing drug activity on the premises).

Finally, Albert contends that certain notebooks seized from his residence are testimonial, self-incriminating evidence. However, he presented nothing that suggests the notebooks are anything more than admissible business records. See Andresen v. Maryland, 427 U.S. 463, 474-75 (1976). Accordingly, Albert's motion to suppress the notebooks is DENIED.

CONCLUSION

IT IS ORDERED that defendant Dwight Albert's Motion to Suppress Confession and Motion to Suppress Evidence are DENIED.