United States v. Fadul

• Decision Date: 21 April 2014
• Docket Number: No. S2 13 Cr. 143JMF.,S2 13 Cr. 143JMF.
• Citation: 16 F.Supp.3d 270
• Parties: UNITED STATES of America, v. Judith P. FADUL et al., Defendants.
• Court: U.S. District Court — Southern District of New York

16 F.Supp.3d 270

UNITED STATES of America
v.
Judith P. FADUL et al., Defendants.

No. S2 13 Cr. 143JMF.

United States District Court, S.D. New York.

Signed April 21, 2014.

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Charles L. Miller, II, Lindy Korn, Law Office of Lindy Korn, Buffalo, NY, for United States of America.

Benjamin K. Ahlstrom, New York State Attorney General's Office, Buffalo, NY, Daniel C. Gard, Dunkirk, NY, for Defendants.

AMENDED OPINION AND ORDER

JESSE M. FURMAN, District Judge.

Defendants Judith Fadul, Kenneth Garcia, and Yasmin Delarosa, charged with drug, gun, and counterfeiting offenses in a six-count superseding indictment (Docket No. 62), move to suppress evidence seized during a search of Fadul's apartment. Their motion implicates an issue of Fourth Amendment law that has divided the Courts of Appeals and remains unsettled in the Second Circuit—namely, whether, and under what circumstances, law enforcement officers may engage in a warrantless “protective sweep” of a home where they initially gained entry to that home by consent. The issue is a difficult one because it requires balancing competing concerns. On the one hand, allowing law enforcement officers to engage in a warrantless protective sweep where they have entered in the first instance based on consent might enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search. It also threatens to undermine the well-established principle that a person can limit the scope of his or her consent to search to a particular area. On the other hand, categorically prohibiting law enforcement officers from taking limited steps to ensure their safety if they have entered a home based on consent would undoubtedly jeopardize the safety of officers and, by extension, cause some officers to forgo consent entries altogether.

Balancing those concerns, the Court holds that, under certain circumstances, law enforcement officers may engage in a protective sweep where they gained entry through consent in the first instance. But the Court also concludes that, in the circumstances presented in this case, the protective sweep at issue was unlawful. Accordingly, and for the reasons stated below, Defendants' motion to suppress is granted.

FACTS

A. Background

The instant case arises from a search of Fadul's apartment, Apartment 4K at 2825 Claflin Avenue in the Bronx, New York (the “Apartment”), by members of the New York City Police Department (“NYPD”) on or about September 10, 2012. As discussed in detail below, the circumstances of the police officers' initial entry into the Apartment and subsequent search are heavily disputed. But there is no dispute that, once inside, the police officers observed and ultimately seized a firearm, drugs, drug paraphernalia, counterfeit United States currency, and counterfeiting equipment. On the night of the search, everyone in the Apartment—including Fadul, Garcia, and Delarosa—was arrested by the NYPD. On January 30, 2013, Fadul was rearrested by federal agents and subsequently charged with two counts of counterfeiting.

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(Docket No. 7).¹ On March 25, 2013, Garcia was re-arrested by federal agents and subsequently charged, in a different indictment, with one count of unlawful possession of a firearm by a felon. (13 Cr. 257, Docket No. 6). Finally, to the extent relevant here, on July 2, 2013, Delarosa was rearrested by federal agents and charged (along with Fadul and Garcia) with one count of conspiracy to distribute or possess with intent to distribute controlled substances. (Docket No. 18). (On or about November 7, 2013, the grand jury returned a superseding indictment charging six additional defendants. They are not involved in the present motion.)

For reasons that will become clear, the early procedural history of this case is important. As noted, Fadul was the first of the three moving Defendants to be charged federally. The Honorable Laura Taylor Swain—who was initially assigned Fadul's case—set April 25, 2013, as a deadline for the filing of defense motions and scheduled a pretrial conference for April 23, 2013. (March 6, 2013 Minute Entry; Docket No. 10). On April 23, 2013, at the request of the parties, Judge Swain extended Fadul's deadline to file motions until July 2, 2013. (Apr. 23, 2013 Tr. at 5). Shortly thereafter, this Court—which was initially assigned Garcia's case—set June 5, 2013, as the deadline for Garcia to file any motions. (13 Cr. 257, May 22, 2013 Oral Order). On June 4, 2013, Garcia filed a motion to suppress evidence, including the evidence seized in the search of the Apartment on September 10, 2012. (13 Cr. 257, Docket Nos. 8–10). In support of the motion, Garcia submitted a sworn affidavit from himself and a sworn affidavit from Delarosa. (13 Cr. 257, Docket No. 9–1, Exs. E & G). In the latter, dated May 31, 2013, Delarosa stated that the officers had “pushed” their way into the Apartment without a warrant or consent. (13 Cr. 257, Docket No. 9–1, Ex. E, ¶¶ 4–5).

Based on the Government's concession that an evidentiary hearing was necessary to resolve Garcia's motion, the Court scheduled a hearing for July 2, 2013. (13 Cr. 257, June 12, 2013 Minute Entry). On June 21, 2013, in advance of the hearing, the Government filed its memorandum in opposition to Garcia's motion. (13 Cr. 257, Docket No. 15). In that memorandum, the Government argued that Delarosa consented to the police officers' initial entry into the Apartment. (13 Cr. 257, Docket No. 15, at 3). In addition, the Government first advanced the argument it presses here: that, after entering Apartment with Delarosa's consent, the police officers engaged in a lawful protective sweep based, in part, on the fact that a male occupant of the apartment “moved toward the back of [the apartment]” and tried to close the door to one of the bedrooms. (13 Cr. 257, Docket No. 15, at 3; see also id. at 10–12).

Just before the evidentiary hearing was to take place in Garcia's case, the Government obtained a superseding indictment in Fadul's case charging her, Garcia, and Delarosa with drug, gun, and counterfeiting offenses. (Docket No. 18). The Government then sought and obtained dismissal of the separate indictment against Garcia alone. (13 Cr. 257, Docket No. 21). In the meantime, on July 1, 2013, Fadul filed her own motion to suppress evidence, including the evidence seized in the search of the Apartment on September 10, 2012. (Docket Nos. 14–16; see also Docket No. 44 (renewing the motion)). That motion

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was supported by sworn declarations from Delarosa (the same declaration that was previously submitted in support of Garcia's motion in 13 Cr. 257), and Fadul herself, dated April 23, 2013 (the date of the earlier pretrial conference before Judge Swain, two days before the first motion deadline). (Docket No. 15–1; see also 13 Cr. 257, Docket No. 9–1). To the extent relevant here, Fadul alleged that she, Garcia, and her fifteen-year-old son, R.D.,² had gone to the grocery store on the night of September 10, 2012, and returned home to find the police “were already searching” the Apartment. (Docket No. 15–1, ¶ 4). Thereafter, Garcia and Delarosa filed their own motions seeking to suppress the evidence seized during the search of the Apartment as well. (Docket Nos. 47, 57).³

B. The Hearing

The Court held a three-day evidentiary hearing in connection with Defendants' motions to suppress beginning on February 3, 2014. With respect to the issue addressed in this Opinion and Order, the Government called three witnesses: Detective Michael Smyth, Sergeant Patricio Ovando, and Detective David Rojas, all from the NYPD. Defendants called one witness, Celeste Crespo, Fadul's daughter and Delarosa's sister.

As will become clear, the parties' versions of what happened on the night of September 10, 2012, differed dramatically. In the Government's version, after receiving an anonymous complaint about marijuana smoking on the premises, the officers requested permission to enter the Apartment, and Delarosa granted it, either explicitly by saying “ok” or implicitly by opening the door and allowed the officers to enter. Inside the Apartment, the officers found themselves outnumbered, with at least one person unaccounted for in the back of the Apartment, and a strong odor of marijuana. On top of that, one occupant of the Apartment—Fadul's son, R.D.—immediately headed from the entrance area toward a bedroom in the rear of the Apartment, refused to stop despite repeated orders to do so, and tried to close the door to the bedroom when an officer confronted him there. A subsequent search of that bedroom resulted in the seizure of the gun, drugs, drug paraphernalia, and counterfeiting equipment.

In Defendants' version, by contrast, the officers requested permission to enter but, when repeatedly asked if they had a warrant, forced their way into the Apartment. According to Defendants, no one in the Apartment was smoking marijuana that night and, even more significant, no one moved in the direction of the first bedroom. In fact, Defendants contend that R.D.—the person alleged by the police to have moved toward the bedroom—was not even present...