U.S. v. Barnes

• Decision Date: 31 October 2005
• Docket Number: No. 05-CR-54A.,05-CR-54A.
• Citation: 399 F.Supp.2d 169
• Parties: UNITED STATES OF AMERICA, v. Yaro BARNES, Defendant.
• Court: U.S. District Court — Western District of New York

399 F.Supp.2d 169

UNITED STATES OF AMERICA, v. Yaro BARNES, Defendant.

No. 05-CR-54A.

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

October 31, 2005.

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COPYRIGHT MATERIAL OMITTED

Richard P. Maigret, U.S. Attorney's Office, Buffalo, NY, for United States of America.

DECISION AND ORDER

ARCARA, Chief Judge.

INTRODUCTION

The defendant, Yaro Barnes, is charged in a one-count indictment with violating 18 U.S.C. § 922(g)(1) and § 924(a)(2), that is, being a prior felon in possession of a firearm and ammunition. The matter was referred to Magistrate Judge Leslie G. Foschio for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1).

On May 31, 2005, the defendant filed a motion to suppress evidence seized from his residence during a search conducted pursuant to a warrant issued by Buffalo City Court Judge Debra Givens. On June 23, 2005, the government filed a response in opposition to the motion to suppress. Pursuant to Magistrate Judge Foschio's request, the defendant filed a supplemental memorandum on July 7, 2005, and the government filed a supplemental response on July 15, 2005. On August 10, 2005, Magistrate Judge Foschio issued a report and recommendation ("Report and Recommendation") recommending that the motion to suppress be denied in all respects.

On September 6, 2005, the defendant filed objections to the Magistrate Judge's Report and Recommendation. On September 21, 2005, the government filed a response. Oral argument was held on October 5, 2005.

DISCUSSION

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review, and after reviewing the submissions and hearing argument from the parties, the Court adopts Magistrate Judge Foschio's Report and Recommendation.

The defendant seeks to suppress a firearm and ammunition that was found in a milk box located in a common hallway of a duplex apartment building where the defendant resided. The duplex consisted of two apartments, an upper level apartment occupied by the defendant and his girlfriend, and a lower level apartment occupied by the defendant's uncle. Occupants of the two apartments shared a common hallway, where the gun was found. See Court Exh. 1, attached hereto (illustration of the layout of the common hallway where the gun was found).

The defendant objects to Magistrate Judge Foschio's conclusion that he had no expectation of privacy in the common hallway of the duplex apartment building.¹ The defendant also argues that "there is a higher expectation of privacy in a duplex." See Defendant's Objections, at 4.

The Court rejects that argument. The law in this Circuit is clear that individual tenants of multi-family dwellings do not have a legitimate expectation of privacy in the common areas, even if those areas are guarded by locked doors. See United States v. Barrios-Moriera, 872 F.2d 12, 15 (2d Cir.1989), reversed on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Holland, 755 F.2d 253, 255 (2d Cir.), cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985).

The Court also rejects the defendant's assertion that there exists a "heightened expectation of privacy" in the common hallway of a duplex apartment, as opposed to a large, multi-family apartment building. In Holland, the Second Circuit rejected a similar argument with respect to duplex apartment house, stating that:

we never have held that the common areas must be accessible to the public at large nor have we required a quantified amount of daily traffic through the area as a basis for determining that a common area is beyond an individual's protected zone of privacy.

Holland, 755 F.2d at 255. The Court reasoned that such a bright-line rule

gives tenants the benefit of much-needed police protection in common hallways ... while it preserves for them the privacy of their actual places of abode, their apartments. It also lays down a clearly-defined boundary line for constitutionally permissible police action, which is readily apparent to an officer in the field, without a need for counting apartments, analyzing common-hallway traffic patterns or interpreting the mental processes of a suspect relating to an area used in common with others.

Id. (internal citations omitted). See also United States v. McCaster, 193 F.3d 930 (8th Cir.1999) (holding that the defendant did not have a legitimate expectation of privacy in the hall closet located within the common area of the duplex in which he resided); United States v. Shaw, 269 F.Supp.2d 90 (E.D.N.Y.2003) (holding that defendant lacked expectation of privacy in the laundry room adjacent to his basement apartment where laundry room was a common area shared by the defendant with his mother and grandfather).

CONCLUSION

Accordingly, for the reasons set forth herein and in Magistrate Judge Foschio's Report and Recommendation, the defendant's motion to suppress evidence is denied.

IT IS SO ORDERED.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on August 2, 2005, for pretrial matters, including report and recommendation on dispositive motions. The matter is presently before the court on Defendant's omnibus pretrial motion filed on May 31, 2005 (Doc. No. 13) seeking various relief, including the suppression of evidence.

BACKGROUND

Defendant Yaro Barnes ("Defendant") was charged in a single count indictment ("Indictment"), dated February 15, 2005, with violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Specifically, Defendant is charged with possession of a firearm and ammunition as a prior felon.

On May 31, 2005, Defendant filed a pretrial motion requesting, inter alia, suppression of physical evidence seized from Defendant's residence during a search conducted pursuant to a search warrant issued in connection with the underlying investigation. (Doc. No. 13). Attached to the motion is the Affirmation of Thomas J. Eoannou, Esq. ("Eoannou Affirmation"), and Defendant's Exhibits A and B ("Defendant's Exh. ___"). On June 23, 2005, the Government filed the Government's Response to the Defendant's Motions (Doc. No. 15) ("Government's Response"), with attached exhibits ("Government's Exh. ___"). The nondispositive discovery requests contained in Defendant's omnibus pretrial motion were resolved at oral argument on June 28, 2005 and the motion was withdrawn as to such requests with the court reserving decision on Defendant's suppression motion. See June 28, 2005 Minute Entry. The court also requested further memoranda of law regarding the admissibility of statements and whether the court was required to conduct a hearing pursuant to United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) to determine the validity of the search warrant under the "good faith" exception to the warrant requirement.

On July 7, 2005, Defendant filed a further Memorandum of Law regarding the suppression issues pending before the court (Doc. No. 17) ("Defendant's Supplemental Memorandum").¹ The Government filed, on July 15, 2005, its Response to the Defendant's Supplemental Memorandum of Law (Doc. No. 18) ("Government's Supplemental Memorandum").

Based on the following, Defendant's motion to suppress evidence should be DENIED without a hearing.

FACTS²

Defendant was convicted of felony crimes in Erie County Court in Buffalo, New York on September 16, 1994, and in New York Supreme Court in Buffalo, New York on January 11, 1996. On October 27, 2004, New York State Police Investigator Clint Calloway ("Investigator Calloway"), and an unidentified confidential informant appeared in camera before Buffalo City Court Judge Debra Givens ("Judge Givens"), seeking a search warrant for Defendant's residence, i.e., the upper apartment of a duplex located at 94 Box Street, Buffalo, New York. According to the affidavit of Investigator Calloway submitted in support of the search warrant ("Investigator Calloway's Affidavit"), ten days earlier, the confidential informant had witnessed an unknown individual in the possession of guns and cocaine at 94 Box Street. A record of the confidential informant's in camera testimony before Judge Givens was made and preserved, although the informant's identity has not been revealed.

Based on the confidential informant's statement, Judge Givens, on October 27, 2004, issued a search warrant for Defendant's residence, i.e., the upper apartment of a duplex located at 94 Box Street, Buffalo, New York. Defendant's uncle, Lavane Mason, owns the premises and resides in the lower apartment. The warrant directed the law enforcement officers to confiscate any cocaine or handguns found on the premises. The search warrant was executed on October 27, 2004 by law enforcement officers of the police departments of New York State and the City of Buffalo. Defendant was present during the search of the apartment during which only a small quantity of marijuana was recovered.

The law enforcement officers also searched a milk box located in a common area on the first floor of the dwelling structure and built into the wall with doors on both sides permitting a person delivering milk to open the box from the outside and place a bottle or bottles of milk in the box, which could then be retrieved by the resident from inside the house by opening the inner door of the box. Because the outer door to the milk box was painted shut, the box could not be easily opened from the outside. During the search, State Police Investigator Torres ("Investigator Torres"), recovered from the milk box a Ruger Super Black Hawk, .44 Magnum gun. Upon recovering the firearm, Investigator Torres placed Defendant under arrest and advised Defendant of his rights pursuant to Miranda v. Arizona,...