170 F.3d 339 (2nd Cir. 1999), 98-1463, United States v. Lovelock

Docket Nº:Docket No. 98-1463.
Citation:170 F.3d 339
Party Name:UNITED STATES of America, Appellee, v. Joseph LOVELOCK, Defendant-Appellant.
Case Date:March 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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170 F.3d 339 (2nd Cir. 1999)

UNITED STATES of America, Appellee,

v.

Joseph LOVELOCK, Defendant-Appellant.

Docket No. 98-1463.

United States Court of Appeals, Second Circuit

March 16, 1999

Argued Feb. 18, 1999.

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[Copyrighted Material Omitted]

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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. [*]

KEARSE, Circuit 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.

BACKGROUND

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

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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 ("probation warrants usually have new and updated information on them").)

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...

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