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United States District Court, S.D. New YorkJul 19, 2004
02 Cr. 1372 (BSJ). (S.D.N.Y. Jul. 19, 2004)

02 Cr. 1372 (BSJ).

July 19, 2004

Opinion Order

On May 14, 2004, this Court conducted a hearing in response to a motion filed by Defendant Larry Williams to suppress evidence recovered during two searches in South Carolina. Police officer Shannon Toole, Corporal Jonathan Guiles, police officer Glen Richard Kufen, and Captain James Bryant Arnold, Jr. testified at the hearing. Based upon their testimony, which I credit, I find the following facts:

On December 14, 2001, the Georgetown South Carolina Police Department received an anonymous tip that an individual named Rossi Graham was located at an apartment at 1800 Prince Street. There was an outstanding warrant for Graham's arrest, which had been issued based on Graham's assault of a pregnant woman with a hot iron. Graham was also known to have resisted arrest and fled from police officers in the past.

Based upon this information, four officers were dispatched to the Prince Street apartment; two officers positioned themselves at the front door of the apartment, and two officers positioned themselves at the back door. One of the officers at the front door, Officer Toole, knocked on the door, and when a voice inside the apartment asked "Who is it?" he identified himself as a police officer. The officers then heard the sound of running footsteps within the apartment, and the officers at the back door observed the back door open and an individual resembling Graham "peeked his head out the door very briefly and stuck it back in[side], and yelled out: Oh, shit." The individual then slammed the door and locked it.

Believing that this individual was Rossi Graham, the officers kicked in the back door and proceeded to conduct a security check of the apartment. The officers detained the three individuals they found in the apartment, including Defendant Larry Williams, handcuffed them, and led them into the living room. At this time, Officer Toole read Mr. Williams his Miranda rights, patted him down, and recovered some currency and a key to a motel room from Mr. Williams's pocket.

During the protective sweep, narcotics were seen in plain view, and the individuals in the apartment were ultimately arrested. Mr. Williams gave a statement indicating that some of the currency recovered from the pocket of his pants belonged to him, some belonged to his cousin, Antoine Walker, who was also present at the Prince Street Apartment, and that the pants he was wearing did not belong to him.

Officer Toole testified that he arrested Mr. Williams after he recovered the currency but before he recovered the motel room key from his pocket.

At some point during the events described above, the officers contacted police headquarters and requested additional assistance. Captain Arnold responded to the call and, when he arrived at the Prince Street Apartment, found Larry Williams and Antoine Walker in handcuffs, sitting on the couch of the living room and guarded by Officer Toole. John Murrell — the individual whom the officers had originally mistaken as Rossi Graham — was seated at the table in the kitchen, guarded by Corporal Guiles. Captain Arnold then proceeded to one of the two bedrooms in the apartment, where he found Officer Phil Volke standing guard and a powdery substance he identified as crack cocaine on the bed. At that time, Captain Arnold lifted a corner of the mattress and recovered a 10 millimeter automatic revolver.

At some time after the motel room key was recovered from Mr. Williams, Officer Kufen was asked to join the investigation into the Prince Street Apartment. He met with Captain Arnold, who briefed him on the events at the Prince Street Apartment, and then, using a telephone number on the hotel key, ascertained that a motel room in Georgetown, South Carolina had been rented to Antoine Walker. Officer Kufen then prepared an affidavit for a search warrant, obtained a search warrant from a magistrate judge, and executed the warrant with another officer. Crack cocaine, heroin, and $4,280 in currency were recovered from the motel room.

Defendant Williams now seeks to suppress evidence seized from the Prince Street Apartment on the basis that (1) the officers' warrantless entry into the apartment was unjustified; (2) the pat down of Mr. Williams exceeded the permissible scope of Terry; and (3) Captain Arnold's search under the mattress exceeded the scope of a protective sweep. Mr. Williams also seeks to suppress his statements to Officer Toole as the fruit of an illegal search (i.e., the pat down), as well as all evidence seized from the motel room on the theory that the recovery of the motel room key and subsequent search of the room were fruits of the officers' illegal entry into the Prince Street Apartment. Finally, Mr. Williams argues, in the alternative, that the evidence from the motel room must be suppressed because it was based on an improper warrant.

I. The Officers' Warrantless Entry of the Prince Street Apartment Was Justified.

Although an arrest warrant permits an officer to arrest an individual in his home, an arrest warrant does not permit an officer to enter the home of a third party to arrest the wanted individual on the belief that the wanted individual might be a guest there. Steagald v. United States, 451 U.S. 204 (1981). In order to effectuate such an arrest, absent exigent circumstances or consent, the officer must have a search warrant for the third party's home. Id. Here, the officers had an arrest warrant for Rossi Graham, but did not have a search warrant to enter the Prince Street Apartment. However, this fact does not render the officers' entry into the apartment unlawful because exigent circumstances justified the entry — namely, the officers were in hot pursuit of an individual whom they reasonably believed to be Rossi Graham.

In United States v. Santana, 427 U.S. 38 (1976), the Supreme Court held that when the police have probable cause to arrest a suspect, and when that suspect is standing in the doorway of her home, the police are justified in pursuing the suspect into her home when she retreats therein after the police identify themselves, even if the police do not have a warrant for the suspect's arrest. The Court found this arrest justified under the doctrine of "hot pursuit," reasoning that: "The fact that the pursuit here ended almost as soon as it began did not render it any the less a `hot pursuit' sufficient to justify the warrantless entry into Santana's house." Id. at 42.

I find this reasoning applies equally when a suspect for whom the police have an arrest warrant retreats into the house of a third party. Although the rights sought to be protected by requiring officers to obtain a search warrant before arresting an individual in the home of a third party are the rights of the third party rather than the rights of the suspect, the doctrine of "hot pursuit" nonetheless justifies this entry. Indeed, when holding that law enforcement officials must secure a search warrant prior to making an arrest entry into third party premises, the Supreme Court specifically stated that "a warrantless entry of a home would be justified if the police were in `hot pursuit' of a fugitive" and cited Santana. Steagald, 451 U.S. at 222. Because the officers' entry into the Prince Street Apartment after the individual whom they reasonably believed to be Rossi Graham retreated into the house was justified under the doctrine of hot pursuit, the evidence seized from the Prince Street Apartment that was in plain view, will not be suppressed.

The Government has argued that the general doctrine of exigent circumstances justified the warrantless entry, statinginter alia that "the officers present could not have known whether that person went to hide within the house, or to destroy evidence, or to harm a hostage with a hot iron, or to obtain a machine gun with which to attack them." However, since the doctrine of "hot pursuit" clearly applies, I need not, and thus do not, address whether the officers' entry would have been justified in the absence of hot pursuit. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (describing the Supreme Court's "usual custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us").

II. The Evidence Recovered From Mr. Williams's Person is Admissible.

While patting down a suspect in order to determine whether he is armed, officers may seize nonthreatening contraband detected during the protective patdown search so long as the officers' search stays within the bounds marked by Terry v. Ohio, 392 U.S. 1 (1968). See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Here, Mr. Williams argues that because when Officer Toole conducted a patdown of Mr. Williams and detected an item that he could not identify, that in removing the item from his pocket Officer Toole exceeded the bounds of a permissible Terry stop and thus the item recovered and Mr. Williams's subsequent statements must be suppressed.

In Minnesota v. Dickerson the Supreme Court held that an officer's continued exploration of a suspect's pocket after he had already concluded that it contained no weapon exceeded the bounds of Terry and the recovered item must be suppressed.Id. at 378. Here, Officer Toole could not determine whether the item in Mr. Williams's pocket was a weapon, so he removed it from the pocket. In United States v. Rogers, 129 F.3d 76 (2d Cir. 1997), the Second Circuit found that an officer's continued manipulation of an item in a suspect's pocket in order to exclude the possibility that there was a weapon in the pocket was permissible. Id. at 79 (the officer "manipulated the object for `a few seconds' to determine what it was, and felt `a hard object and then a softer object.' At that point, [the officer] was not yet able to exclude the possibility that there was a weapon in the pocket, so that the search was still within the bounds ofTerry").

Because Officer Toole was unable to exclude the possibility that the unidentified object was a weapon, he was within the bounds of Terry to remove the item for further inspection. Therefore, neither the currency retrieved from Mr. Williams's pocket nor his subsequent statements will be suppressed.

A: I didn't know if it was a weapon or not.
. . .
Q: Why did you take it out of his pocket?
A: Because I didn't know what it was. (Tr. at 37).

The motel room key recovered from Mr. Williams was not recovered until after Officer Toole had been informed that narcotics had been found in plain view. At that point Officer Toole considered Mr. Williams to be under arrest, and any subsequent search of Mr. Williams was justified as a search incident to arrest.

III. The Gun Found Under the Mattress is Not Admissible.

In United States v. Blue, 78 F.3d 56 (2d Cir. 1996), the Second Circuit held that an officer's search between a mattress and box spring exceeded the permissible scope of a protective sweep, when all suspects had been sufficiently restrained, the area between the mattress and box spring was clearly not within the "grab area" of any suspect, and when there was no articulable reason to believe that a person might be hiding between the mattress and the box spring. "A protective sweep is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1997).

At the suppression hearing, Captain Arnold testified that it is his "common practice" to lift the corner of mattresses during a protective sweep "to make sure that there are no firearms, no weapons there anybody there can get at." While this practice is certainly advisable if there is a possibility that any individual could conceivably gain access to such a firearm, given the circumstances at the Prince Street Apartment when Captain Arnold lifted the corner of the mattress, it is clear that Blue requires suppression of the gun that was recovered. When Captain Arnold conducted his walk through of the apartment, two suspects were seated on the sofa in the living room, handcuffed, and guarded by an officer. The third suspect was seated at a table in the kitchen, also guarded by an officer. Officer Phil Volke was present in the bedroom where the gun was found, and Captain Arnold's testimony does not suggest that he believed any additional suspects were at large. Because the three detained individuals were adequately restrained, the mattress was not within the grab area of any detainee (they were in different rooms), and because no facts were articulated to suggest that the officers suspected someone was hiding under the mattress (or elsewhere in the apartment), Captain Arnold's search under the mattress in the bedroom exceeded the bounds of a permissible protective sweep as articulated by the Second Circuit in United States v. Blue. Therefore, the gun must be suppressed.

The record suggests that this individual was also in handcuffs.

IV. The Search Warrant for the Motel Room.

Officer Kufen testified that the information he provided in the affidavit for the search warrant was, at least in part, based on hearsay.

The fact that much of the information contained in [an] affidavit [is] not based on . . . first hand knowledge is not, in and of itself, material to the viability of that affidavit and the warrant. . . . The only questions for the Court are whether the [affiant's] reliance on that informant was reasonable, and whether the Magistrate was fully informed of all necessary facts when she made her finding of probable cause for the issuance of the search warrant.
United States v. Smith, 9 F.3d 1007, 1013 (2d Cir. 1993) (quoting United States v. Brown, 744 F. Supp. 558, 566 (S.D.N.Y. 1990)).

Defendant Williams has moved to suppress the evidence seized from the motel room because Officer Kufen had no first hand information with respect to the facts he asserted in his affidavit and the magistrate judge was never given the sources of the hearsay statements. The Government has referred the Court to its pre-hearing brief with respect to Mr. Williams's claims of search warrant deficiencies. However, the Government's pre-hearing brief does not appear to address this hearsay issue. Therefore, the Government is directed to submit a supplemental brief on this matter no later than 15 days from the date of this Opinion.


For the reasons stated above, with the exception of the gun retrieved from under the mattress, Larry Williams's motion to suppress evidence from the Prince Street Apartment is DENIED. The motion to suppress Mr. Williams's statements during the search of the Prince Street Apartment is DENIED. Mr. Williams's motion to suppress the gun recovered from the Prince Street Apartment is GRANTED. The Government is directed to submit further briefing with respect to Mr. Williams's motion to suppress evidence seized from the motel room.


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