468 F.Supp.2d 373 (E.D.N.Y. 2006), 06-CR-232, United States v. Bailey

Docket Nº:06-CR-232 (JFB).
Citation:468 F.Supp.2d 373
Party Name:UNITED STATES of America, v. Chunon L. BAILEY, Defendant.
Case Date:September 06, 2006
Court:United States District Courts, 2nd Circuit, Eastern District of New York

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468 F.Supp.2d 373 (E.D.N.Y. 2006)



Chunon L. BAILEY, Defendant.

No. 06-CR-232 (JFB).

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

Sept. 6, 2006

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Charles P. Kelly, Esq., Assistant United States Attorney, Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY, for the Government.

Michael D. Weil, Esq., Leonard F. Joy, Esq., Federal Defenders of New York, Central Islip, NY, on the brief for Defendant.

Joseph Conway, Esq., and Nancy Valery, Esq., LaRusso & Conway, Attorneys at Law, Mineola, NY, for the Defendant at oral argument.


BIANCO, District Judge.

Defendant Chunon Bailey was indicted on April 6, 2006 in three counts, all relating to the events of July 28, 2005. Count One charges that Bailey possessed with intent to distribute at least 5 grams of cocaine base, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(B)(iii). Count Two charges Bailey with being a felon in possession of one or more firearms, in violation of Title 18, United States Code, Section 922(g)(1). Count Three charges Bailey with using and carrying firearms in relation to a drug trafficking crime, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i).

Bailey has moved to suppress physical evidence and statements obtained on the

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day of his arrest, arguing that: (1) the police had no authority to detain him, pursuant to the execution of a search warrant at a residence, once they allowed him to leave the immediate area of the residence that was about to be searched; (2) any statements made during that detention were obtained in violation of his constitutional rights because the officers failed to advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) the police had no authority to seize his keys during such detention. On July 27, 2006, the Court heard argument on Bailey's motion and, on August 2, 2006, the Court conducted an evidentiary hearing regarding the motion. For the reasons that follow, the motion is denied.


The two law enforcement officers who detained Bailey on the day of his arrest testified at the hearing. Bailey called no witnesses. After evaluating the credibility and demeanor of the witnesses, and the other evidence offered at the hearing, the Court makes the following findings of fact.

On July 28, 2005, the Suffolk County Police Department obtained a search warrant, issued by Judge Lotto of the First District Court in the Town of Islip, New York, authorizing the search for a .380 handgun at the rear basement apartment (hereinafter, the "apartment" or "residence") in a house located at 103 Lake Drive, Wyandanch, New York. In connection with the search, the officers executing the search warrant had a general description from an informant regarding the individual who occupied that apartment--namely, "a heavy set black male with short hair" and the name "Polo." (Tr. 15-16, 49-50; Ex. 1.) 1

The search warrant was executed later that evening. At approximately 9:56 p.m., shortly before the execution of the search warrant, Suffolk County Police Detectives Richard Gorbecki and Richard Sneider were in an unmarked vehicle outside the residence conducting pre-search surveillance and observed two individuals (one later identified as defendant Chunon Bailey) leave the gated area that leads only to the basement apartment and enter a black Lexus in the driveway of the residence. Both individuals matched the general physical description provided by the confidential informant in connection with the search warrant. For safety reasons, including a desire to avoid having the defendant potentially alert others in the apartment to the presence of law enforcement, the detectives did not detain the two individuals in the driveway or in sight of the residence; rather they let them drive away and followed the black Lexus for approximately one mile (which took less than five minutes) and stopped the car in the vicinity of the Wyandanch Fire Department. In particular, the detectives were concerned that, if any people who remained inside the residence saw that individuals leaving the residence were being stopped, they could arm themselves or destroy evidence prior to the search. (Tr. 15-18, 51-54.)

The detectives explained that they waited about one mile to stop the car rather than detain them immediately to prevent people in the residence and people passing down the block going to the residence, from seeing them stop the car. In addition, once the Lexus was off the block and they were able to get directly behind the vehicle, they were located at a busy intersection and, rather than conduct the stop at that busy intersection, the detectives decided to wait until the Lexus turned off

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that busy road and then conducted the stop at the firehouse. At no time while the detectives were following the Lexus was the Lexus out of the detectives' sight. (Tr. 19-20, 37, 39, 54.)

After the car was stopped by the detectives, the two occupants were told to step out of the vehicle and to go to the back of the car. They were then patted down to determine if they possessed any weapons. The detectives were particularly concerned about weapons given that the focus of the search warrant was a handgun. As part of the pat-down, hard items were removed from their person including, as to Bailey, his keys on a key ring (including the key to the car) in his front left pocket and his wallet in his back right pocket. Those items were placed on the trunk lid. No weapons were found. (Tr. 21-24, 55-56, 59.)

At the back of the car, Detective Sneider conducted an identification inquiry as to Bailey, who was the driver of the car. Specifically, he asked Bailey who he was and Bailey stated his name. Sneider then asked where Bailey was coming from and he responded that he was coming from his house. When Sneider asked Bailey for the location of his house, Bailey stated that it was 103 Lake Drive. 2 Sneider then asked Bailey for identification and Bailey took his license out of his wallet and handed it to Sneider. Looking at the license, Sneider noticed that the address was not 103 Lake Drive in Wyandanch, but rather was a Bayshore address. The fact that the license showed Bayshore as his town of residence was significant to Sneider because the confidential informant, who had provided information to the detectives in connection with the search warrant, had stated that the person from whom he had bought narcotics had lived in Bayshore prior to living at 103 Lake Drive. (Tr. 25, 56-57.)

After conducting the identification inquiry, Bailey and the other occupant of the vehicle were handcuffed for safety reasons to be transported back to 103 Lake Drive and detained during the execution of the search. After being handcuffed, Bailey asked why he was being arrested. In response to Bailey's inquiry, Detective Gorbecki advised him that he was not under arrest, but that he was being detained in connection with a search warrant that was about to be executed at his residence. Bailey then stated that he was not cooperating, he does not live there, and anything found there was not his. (Tr. 26-27, 45, 58-59.)

The detectives contacted a patrol car to transport Bailey and the other occupant back to the site of the search at 103 Lake Drive. The wallet was returned to Bailey's pants, but the keys (which contained five or six keys, including the key to the black Lexus) were used by Detective Gorbecki to transport the car back to the scene of the search. Uniformed officers drove Bailey and the other individual back to the scene of the search and, as the officers arrived back at the search, they were advised by the entry team that there was a gun and drugs in plain view in the apartment. 3 At that time, Bailey and the other individual were placed under arrest

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and the keys on the key ring were not returned, but were seized incident to the arrest. At some point on the evening of the search of the apartment, a key on Bailey's key ring (along with the car key) was tested and fit the door of the searched apartment and, at that time, the key and lock were seized for evidence. (Tr. 27-29, 59-60.)


Bailey argues that his detention during the search of the residence was a violation of the Fourth Amendment and, thus, the evidence recovered as a result of that detention, including the key to the residence where contraband was recovered and his statements to the police, must be suppressed. More specifically, Bailey argues that: (1) the police did not have a lawful basis to stop him once he left the area of the residence that was about to be searched; (2) even if they had a lawful basis to stop him, his statements to the police without Miranda warnings violated the Fifth Amendment; and (3) the seizure of his keys during the stop violated the Fourth Amendment. As set forth below, the Court finds these arguments to be without merit and denies the motion. The Court will address the issues in turn--the car stop and detention, the statements, and the seizure of the keys.

A. Stop of Bailey's Car and Bailey's Subsequent Detention

Although Bailey argues that the stop of his vehicle violated the Fourth Amendment, the Court finds that the stop and his subsequent detention were lawful as a detention during the execution of a search warrant, under Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), or, in the alternative, as a lawful investigative detention, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

1. Detention During Search of Residence Under Summers


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