U.S. v. Lovelock
| Decision Date | 16 March 1999 |
| Docket Number | Docket No. 98-1463 |
| Citation | 170 F.3d 339 |
| Parties | UNITED STATES of America, Appellee, v. Joseph LOVELOCK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert B. Buehler, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Dietrich L. Snell, Assistant United States Attorney, New York, New York, on the brief), for Appellee.
Darrell B. Fields, New York, New York (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, on the brief), for Defendant-Appellant.
Before: KEARSE and SACK, Circuit Judges, and STEIN, District Judge. *
Defendant Joseph Lovelock appeals from a judgment entered in the United States District Court for the Southern District of New York following a bench trial before Harold Baer, Jr., Judge, convicting him of fraud in connection with telecommunications access devices, in violation of 18 U.S.C. § 1029(a) (1994), and sentencing him principally to 15 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Lovelock contends that the district court erred in denying his pretrial motion to suppress evidence as the product of an unlawful entry into his apartment. The district court ruled that the entry was lawful because the officers were attempting to execute an arrest warrant for a person other than Lovelock and reasonably believed that other person to live in the apartment. For the reasons that follow, we affirm.
The present prosecution was begun after New York City police officers, attempting to execute a warrant for the arrest of a person other than Lovelock, discovered in an attic apartment at 744 East 229th Street in the Bronx a variety of paraphernalia for the creation of counterfeit checks and the falsification of credit cards and cellular-telephone identification numbers. Prior to trial, Lovelock moved to suppress the physical evidence, as well as certain statements he made to the officers, on the ground that he was a resident of the apartment and their entry into the apartment was unlawful. At the suppression hearing, the government's evidence as to the events leading to the entry was presented principally through the testimony of Police Sergeant Mary Dingler and Detective Thomas Gervasi. The evidence, taken in the light most favorable to the government, included the following.
Dingler, a supervisor of the Bronx Warrant Squad, testified that each Warrant Squad team of approximately six officers would typically receive 50 or more arrest warrants to execute in a given week. The teams attempted each day to execute all of the warrants that had been issued on the previous day; they set out very early each morning because this increased their chances of finding the suspect at home. On November 9, 1995, Dingler's team received from the New York Supreme Court a warrant, issued on November 8, for the arrest of one Jon Williams, who had been convicted of criminal possession of a weapon and who was alleged to have violated his probation. A photograph of Williams was attached. The warrant listed Williams's "residence address" as "744 E 229th St.," "Bronx, N.Y."
The warrant showed a different address as a "[p]rior address," which, according to a computer printout of Williams's arrest report, had been his address at the time of his arrest in 1994. The officers believed that the "residence address" shown on the warrant, 744 East 229th Street, was likely Williams's current residence because warrants issued On November 9, a five-officer team headed by Dingler began its attempts to execute warrants at about 4:30 a.m. Between 7 and 8 a.m., they arrived at 744 East 229th Street seeking to arrest Williams. The building at that address appeared to be a two-family house. The officers first made inquiry of the tenant of the first floor apartment. Dingler testified, "We asked her if she recognized the photo and if he resided in the building and when we asked her if he resided in the building she said 'he stays in the attic.' " (Tr. 62.) The officers then went to the second floor and inquired of the tenant living there. The second-floor tenant, shown the photograph of Williams, said " 'He stays with Joe upstairs.' " (Tr. 26.) The officers understood these responses, in light of the "residence address" shown on the arrest warrant, to mean that Williams resided in the attic apartment. (Dingler: ); Tr. 106 (Gervasi: "I have a warrant here with his address on it so when somebody says 'he goes to the attic' and I have it as his residence that he gave to the Department of Probation, I believed that he is living there.").)
for violations of probation ("probation warrants") normally "have pretty accurate information because the defendant sees his probation officer on a regular basis and has to notify his probation officer of any changes in his address...." (Hearing Transcript, September 25, 1996 ("Tr."), 17; see also Tr. 21 ().)
The officers then went up to the attic, where they found the door slightly ajar and hence believed that Williams either was inside or had learned that the officers were there and was fleeing through a rear exit. Knowing that Williams had been convicted of criminal possession of a weapon, the officers entered the attic apartment without knocking or announcing themselves. They found no persons in the apartment, but in the center of the floor in the main room they saw numerous electronic devices, including computers, printers, copying machines, and cellular telephones, and "all kinds of checks that were already written and blank checks." (Tr. 32.) The officers promptly placed calls to the computer fraud unit, the Bronx District Attorney's Office, the Federal Bureau of Investigation, and the United States Secret Service.
Two officers, including Gervasi, then remained in the apartment, while others went outside to maintain surveillance of the building. Gervasi, looking out the window, saw Lovelock arrive at the building some three hours later; without knowing his name, Gervasi recognized him because photographs of him were on the floor of the attic apartment. When Lovelock entered the apartment, he was arrested. He and the paraphernalia found in the apartment were eventually turned over to the Secret Service.
On cross-examination of the officers, Lovelock's attorney brought out that before going out to execute arrest warrants at 4:30 a.m. on November 9, the officers did not call Williams's probation officer to inquire when he or she had last spoken to Williams or how recently Williams had given the 744 East 229th Street address as his residence; that they did not attempt to cross-check that address against listed telephone numbers to determine whether Williams had a telephone listed to him at that address; and that they did not seek information from postal employees as to whether there had been any recent deliveries to Williams at that address. Lovelock contended that the officers did not have good reason to believe either that Williams lived at that address or that he was present in the attic apartment when they arrived there.
In an Opinion and Order reported at 1997 WL 4574 (Jan. 7, 1997), the district court denied the motion to suppress, noting that " '[a]gents may enter a suspect's residence, or what they have reason to believe is his residence, in order to effectuate an arrest warrant where a reasonable belief exists that the suspect is present.' " 1997 WL 4574, at * 2 (quoting United States v. Lauter, 57 F.3d 212, 214 (2d Cir.1995)). The court stated:
I find that under this standard the officers here had the requisite reasonable belief that (1) Williams resided in the attic 1997 WL 4574, at * 2. The court found that the officers' efforts to determine Williams's current residence were reasonable and that further efforts were not necessary. Id. at * 2-3.
apartment and (2) that he was home at the time they entered it. As to the first prong, both Sergeant Dingler and Detective Gervasi testified that they believed Williams resided in the building based on the information in the arrest warrant, the fact that it was a probation warrant (which suggests that the address listed is accurate), and the interviews with the other tenants in the building who recognized Williams' photograph and indicated that he lived in the attic apartment.... As to the second prong, Sergeant Dingler testified that the statements of the two tenants led her to believe that Williams was in the apartment.... She explained that in general the Warrant Squad attempts to execute its warrants early in the morning when suspects are not yet up and out of the house, and there is a better chance at successful execution.... Courts have recognized that once police officers have reason to believe that a suspect lives in a particular dwelling, they may reasonably infer that he will be home early in the morning. See United States v. Terry, 702 F.2d 299, 319 (2d Cir.) (finding that officers could reasonably believe a suspect would be home at 8:45 A.M. on a Sunday morning), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983).... Further, both witnesses testified that they believed that Williams was in the apartment because the door was open.... I find that this inference was reasonable
The court adhered to its decision on reconsideration, and the challenged evidence was admitted at Lovelock's trial. Lovelock was convicted and sentenced as indicated above; this appeal followed.
On appeal, Lovelock contends principally (1) that the police had notice that they might be entering the residence of a person other than Williams, and...
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