US v. Trzaska

• Citation: 866 F. Supp. 98
• Decision Date: 21 October 1994
• Docket Number: No. 93 CR 1134.,93 CR 1134.
• Parties: UNITED STATES of America, Plaintiff, v. Edward TRZASKA, Defendant.
• Court: U.S. District Court — Eastern District of New York

866 F. Supp. 98

UNITED STATES of America, Plaintiff, v. Edward TRZASKA, Defendant.

No. 93 CR 1134.

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

October 21, 1994.

Zachary Carter, U.S. Atty., E. D. New York, Brooklyn, NY by Raymond Granger, Asst. U.S. Atty., for plaintiff.

Howard Jacobs, New York City, for defendant.

MEMORANDUM & ORDER

KORMAN, District Judge.

Edward Trzaska is charged with possessing a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) (Supp.1994). The physical evidence, consisting of firearms, ammunition and firearms accessories, was seized from defendant's apartment in Queens, New York, and from a garage that was rented by the defendant several blocks away. The evidence was seized during two searches: one warrantless and one pursuant to a warrant. Trzaska moved to suppress the evidence, arguing that the warrantless search was unconstitutional and that the search pursuant to warrant was also invalid because the warrant was based upon information derived from the illegal search.

Because the warrantless search was non-consensual and not subject to any exception to the warrant requirement, defendant's motion with respect to that search is granted. The search warrant, however, even when parsed of the evidence seized from the illegal search, is supported by probable cause. Accordingly, defendant's motion is denied with respect to the evidence seized pursuant to the warrant.

BACKGROUND

After serving approximately one third of a twenty year sentence, following his conviction in 1983 for unlawful receipt of firearms, defendant was paroled in February 1990 to the supervision of the Probation Department of the Eastern District of New York. This was the second time the defendant had been paroled since the initial sentence was imposed in 1983. After violating the conditions of his first parole term by possessing twelve rifles and seven shotguns, the defendant was incarcerated until his release in 1990.

In May 1993, Probation Officer Kelley O'Keefe, who was supervising the defendant while he was on parole, received information from a confidential source ("CS") that the defendant was receiving a large volume of printed materials, magazines and mail-order catalogues from vendors that specialized in firearms and ammunition. In addition, the CS reported that defendant was receiving United Parcel Service ("UPS") shipments from a "Natchez Shooters Supply Company" located in Chattanooga, Tennessee. After inquiring with that company, Officer O'Keefe and agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") obtained invoices from shipments made to an "Ed's Sporting Goods" located at the same address as defendant's apartment on 118-17 15th Avenue in College Point, Queens. The invoices recorded the purchase of accessories for weapons and materials used to make "reloads," or ammunition reassembled from spent shell casings.

Based upon this information, Officer O'Keefe and the ATF officers undertook an examination of UPS shipping records that documented deliveries to defendant's apartment. Their investigation revealed that the defendant was receiving shipments from seventeen other weaponry supply stores. Invoices from several of these establishments reflected additional purchases of accessories for weapons and the materials necessary to manufacture ammunition. The shipments were made predominantly from February 1992 through June 1993. The defendant had also twice ordered similar supplies in the first few weeks of September 1993.

On September 25, 1993, Officer O'Keefe went to defendant's apartment to conduct a "routine home contact." Tr. of Supp'n Hr'g, Dec. 10 and Dec. 15, 1993 ("Tr.") at 16. According to her, although she was aware that defendant had received shipments from weaponry supply stores, she "sincerely did not believe that anything Mr. Trzaska might have been delivered would have been out in plain view." Tr. at 30. Thus, her visit was not intended to be a search, but just a "routine home contact" for the purpose of verifying defendant's residence. Tr. at 30-31. Officer O'Keefe was accompanied by Officer Eileen Kelly.

After speaking with the defendant briefly in the hallway outside his apartment, Officer O'Keefe asked the defendant whether the officers could come inside. See Tr. at 17. Trzaska acquiesced, and allowed the officers into the doorway of his one-room apartment. Officer O'Keefe then saw the defendant's son inside the apartment and heard the voice of a woman from behind a partitioned area. See Tr. at 18-19.

While speaking with the defendant for just a few minutes, Officer O'Keefe observed, under a table to her right, a jar filled with what appeared to be bullets. See Tr. at 19, 35-38. Officer Kelly simultaneously observed, on top of a file cabinet, trays with shell casings and ammunition calibrators. See Tr. at 123, 126-27. They then exited the apartment without alerting the defendant to what they had seen.

Approximately one hour later, O'Keefe and Kelly returned to the apartment accompanied by four New York City Police Officers, who were brought along "for backup." Tr. at 19. Officer O'Keefe described what transpired as follows:

We rang the bell. Mr. Trzaska opened the door. He — there was a police officer in front of me, and he Trzaska said, what's this, what's going on, something to that effect.

I explained to him that I had observed bullets in a jar under his table and that I was there to seize that contraband, as well as the bullets that Officer Kelly had observed on top of some shelf to the right, and that we were going to look around his apartment and anything else that was in plain view we were also going to seize.

Tr. at 82. According to Officer O'Keefe, the defendant then said nothing, turned around, and walked up the stairs to his apartment. See Tr. at 21.

While the defendant's girlfriend and son were escorted outside the apartment by the police officers, Officers O'Keefe and Kelly then proceeded to conduct what they termed a "plain view search" of the premises. See Tr. at 125. That is, instead of "opening drawers, looking under things, pushing up ceiling tiles, looking in cabinets and closets and refrigerators," the officers "merely stood in the middle of the room and looked, and everything that was in plain view that was considered contraband was seized." Tr. at 82-83. As a result of this search, a rifle, over 40 boxes and containers of ammunition, empty shell casings, and materials and instruments used to make ammunition, were seized. Officer O'Keefe then asked the defendant for his permission to conduct a more thorough search. The defendant refused to consent and the Probation Officers left without conducting a more intensive search.

After returning to her office to inventory the seized contraband, Officer O'Keefe contacted a neighbor of the defendant's and inquired whether the defendant was visible "taking anything out of his apartment." Tr. at 26. She was then informed that the defendant could be seen removing several bags and a box from his apartment, and placing them into a green Cadillac El Dorado. Id. Officer O'Keefe next queried the neighbor whether the defendant was unloading the materials into a garage that O'Keefe was aware the defendant was renting, at 22-01 119th Street in College Point. Id. When the neighbor later called back to reply in the affirmative, Officer O'Keefe and her colleagues rushed to the vicinity of the garage, and set up surveillance. The Probation Officers then observed the defendant passing by the garage at least six times in his car. Tr. at 27.

Several days later, ATF Special Agent Krissi Studwell prepared an affidavit that essentially recited the foregoing information. Based on that affidavit, search warrants were issued for both the apartment and the garage. The warrants were executed the following day. Among the items seized were thousands of rounds of ammunition, equipment used to make ammunition, and 44 firearms. The defendant was then indicted for possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).

The defendant now moves to suppress all of the seized evidence on the ground that the warrantless entry and "plain-view search" of his apartment was unconstitutional. Moreover, because the affidavit in support of the search warrants relates information derived from that search, the defendant argues that all items seized pursuant to the warrants are "fruits of the poisonous tree" that must likewise be suppressed.

DISCUSSION

The United States Attorney argues that, on each of the two occasions the Probation Officers arrived at the defendant's apartment on September 25, they were acting pursuant to their "inherent" authority to conduct "home visits." See Letter of Raymond R. Granger, May 18, 1994 at 2. To be sure, "home visits" by parole officers are among the lawful restrictions to which parolees have traditionally been subjected. See, e.g., Diaz v. Ward, 506 F.Supp. 226, 228-29 (S.D.N.Y. 1980) (interpreting home visit provision of New York State law). While there is no federal statute that expressly grants parole or probation officers the authority to conduct home visits, see 18 U.S.C. § 4201 et seq. (repealed 1984) (parole); 18 U.S.C. § 3601 et seq. (probation), in the probation context courts have implied such a mandate based upon the probation officer's general supervisory authority. See United States v. Rea, 678 F.2d 382, 387 (2d Cir.1982) (construing 18 U.S.C. § 3651); United States v. Workman, 585 F.2d 1205, 1208 (4th Cir.1978) (same).

A routinely performed visit to a parolee's home serves the purpose of verifying the parolee's residence, employment status, and other indicia of community adjustment. See Tr. at 29 (testimony of Officer O'Keefe). In Diaz v. Ward, a class action brought by parolees in the New York State system, Judge Haight prescribed the proper scope for such visits:

In performing a home visit, a parole officer may properly be limited by the parolee to one room

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